https://new.kenyalaw.org/akn/ke/judgment/keca/2026/918

Mbugua (Suing on His Own Behalf and on Behalf of 151 others) v Nganga & 6 others (Civil Application E033 of 2026) [2026] KECA 918 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 918 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E033 of 2026 MB Kairaria, JA May 15, 2026 Between Francis Gitiria Mbugua (Suing on His Own Behalf and on Behalf of 151 others) Applicant and Grace Wanjiru Nganga 1st Respondent Jennifer Waringa Miaraho 2nd Respondent Agricultural and Industrial Holdings Ltd 3rd Respondent Jecinter Wangari Nyoike 4th Respondent The District Lands Registrar, Naivasha 5th Respondent Rift Valley Regional Surveyor 6th Respondent Honourable Attorney General 7th Respondent (An application seeking extension of time from the judgement of the Environment and Land Court at Naivasha (Oundo M. Clausina J.) delivered on 29th January 2026 in ELC Case No. E113 OF 2024) Ruling 1.Before me for determination is the applicant’s Notice of Motion application dated 27th February 2026 brought under Rule 4 of the Court of Appeal Rules principally seeking extension of time to lodge and serve a notice of appeal against the judgment of the Environment and Land Court delivered on 29th January 2026 in Naivasha ELC Case No. 113 of 2024 formerly ELC E016 OF 2023]. 2.The application is based on the grounds set out on the face of the Motion supported by the affidavit of Francis Gitiria Mbugua sworn on 27th February 2026. Briefly those grounds and the material in support thereof can be summarized as follows; the applicant is aggrieved by the judgment delivered on 29th January, 2026 and desires to appeal against it to the Court of Appeal, but did not file and serve a notice of appeal within 14 days after delivery of the judgment as required by Rule 77 of the Court of Appeal Rules 2022, because it took time to mobilize and consult with its 152 members and were required to convene a special General Meeting to deliberate on the judgment and resolve whether to file an appeal against the decision to this Court . The 14 days prescribed by the Rules for filing the notice of appeal lapsed on 12th February, 2026 and they filed the instant application on 27th February, 2026, a delay of 15 days, they have an arguable appeal which raises serious points of law including limitation and the effect of post -2022 Judicial Review orders on accrual of causes of action,the respondent will not that cannot be compensated by way of costs and lastly that it is in the interest of justice that the applicants be granted an opportunity to ventilate their appeal. 3.The applicant further relies on written submissions dated 22nd April 2026 and a supplementary affidavit sworn on 22nd April 2026 together with case digest and case law to urge me to allow the application. 4.The 1st ,2nd and 3rd Respondents on their part oppose the application for extension of time and rely on the replying affidavit sworn on 24th March,2026 by Grace Wanjiru Nganga the 1st Respondent, the written submissions dated 18th April,2026, case digest and list of authorities of even date. Basically the three Respondents contend that the delay has not been satisfactory explained, Francis Mbugua the applicant filed the primary suit as an individual on his own behalf and on behalf of other members without the authority of the members he says he represents, he is not an official of the Maisha Uiguano Self Help Group and has no authority to institute either the suit or the appeal on behalf of the other members, he has not exhibited evidence to show that members were mobilized and met to resolve to mount the appeal, the names of the other 151 members have not been included in the title of the application and are not to be considered as being party to the application. Counsel for the 1st ,2nd and 3rd Respondents placed reliance on the following case law; Telkom Kenya ltd vs Ochanda Civil Appeal NO. 60 OF 2013, and Nkoora vs kuyuoni & 2 Others Civ. Appeal E010 of 2024] and finally that the intended appeal is not arguable. 5.I have considered the rival arguments and the question for determination is whether i should exercise my discretion to extend time to the applicant to file and serve the notice of appeal out of time. 6.The principles applicable in determining an application such as the present one are succinctly captured in the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi . The Court takes into account the length of the delay ,the reason for the delay ,the chances of appeal succeeding and the degree of prejudice that may be occasioned to the Respondent if the order for extension is made. 7.In the instant case the delay is not inordinate it is barely 15 days between the expiry of the prescribed period and the making of the application for extension of time. The reason for the delay is also plausible. Although the 1st 2nd and 3rd Respondents doubt the explanation given by the Applicant it is nevertheless a plausible reason considering that the plaint named 152 persons as plaintiffs in the suit and so the explanation that the short delay occurred due to the need to consult other members is not implausible. The applicants have a right of appeal which they desire to pursue. They have come to court timeously to remedy their default of failing to file the notice of appeal within 14 days as ordained in the rules. As to whether the intended appeal will ultimately succeed that is a matter for the full bench to consider. There is no prejudice occasioned to the Respondents by a grant of extension of time to lodge and serve the Notice of appeal. 8.Accordingly, I allow the application for extension of time. The applicants shall file and serve the notice of appeal within 14 days from today and thereafter file and serve the intended appeal within 30 days. The costs of the application shall abide the intended appeal. DATED AND DELIVERED AT NAKURU THIS 15TH DAY OF MAY, 2026.MURUNGI B. KAIRARIA............................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR