https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3202

Kinya v Kaumo (Sued as the Legal Administrator of the Estate of the Late Milton Mirithu - Deceased) & another (Environment and Land Miscellaneous Application E010 of 2026) [2026] KEELC 3202 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3202 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Miscellaneous Application E010 of 2026 BM Eboso, J May 26, 2026 Between Francis Kanocia Kinya Applicant and Gladys Kaumo (Sued as the Legal Administrator of the Estate of the Late Milton Mirithu - Deceased) 1st Respondent Attorney General 2nd Respondent Ruling 1.Falling for determination in this ruling is the application dated 18/2/2025 (sic) [there was a typographical error in terms of the year, in the sense that it reads “2025” instead of “2026”. Parties, proceeded on the basis of the date of 18/2/2026. This is evident from paragraph 2 of the respondent’s replying affidavit dated 8/5/2026]. The application was brought by Francis Kanocia Kinja (the applicant). Through it, the applicant seeks an order enlarging the time within which to lodge an appeal against the judgment rendered by the Senior Resident Magistrate Court at Maua on 9/1/2026 in Maua CMC E & L Case No E005 of 2020. The application is opposed by the 1st respondent. The 2nd respondent does not oppose the application. The key question to be determined in the ruling is whether the application meets the criteria for enlarging the time for lodging an appeal in this court. Before I analyse and dispose the issue, I will briefly outline the parties’ respective cases in the application. 2.The application was premised on the grounds set out on the face of the motion and in the applicant’s affidavit dated 18/2/2025. It was canvassed through oral submissions tendered in the virtual court on 11/5/2026. The case of the applicant is that the impugned judgment was rendered by Hon. Ken Muchiri on 9/1/2026. At the time of rendering the judgment, Hon Ken Muchiri was on transfer and the court did not notify him [the applicant] on the date of delivery of the judgment. He managed to access the judgment on 16/1/2026 after it was uploaded on the Judiciary’s Case Tracking System. He is aggrieved by the judgment but he is unable to lodge an appeal against the judgment because the prescribed limitation period of 30 days lapsed without him being aware that judgment had been rendered. 3.The applicant states that the delay in filling the appeal was not deliberate, adding that the delay is not intended to prejudice the respondent. He further states that the delay was occasioned by the court, which he had no control over. The applicant argues that the intended appeal raises arguable issues and has high chances of success. 4.The respondent opposed the application through a replying affidavit dated 8/5/2026. The case of the respondent is that the application is misconceived and is based on falsehoods. She states that her name is Jerusha Kaumo Mirithu and not Gladys Kaumo Mirithi. The respondent further states that she is not the personal representative of Milton Mirithi, adding that Milton Murithi is a stranger to her. She contends that her late husband’s name was Livingstone Mirithu. 5.The respondent adds that she is not the personal representative of her late husband, hence she has no locus standi to defend the intended appeal. She states that the chances of success of the intended appeal have not been demonstrated. It is her case that the intended appeal is mischievous, contemptuous and a misuse of judicial process. 6.The court has considered the application, the 1st respondent’s response to the application and the parties’ respective submissions tendered on the application. As pointed out in the opening paragraph of the ruling, the key question to be determined in the ruling is whether the application under consideration meets the criteria for enlarging the time for lodging an appeal in this court. 7.The limitation period for lodging an appeal in this court against judgments of lower courts is contained in Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act. The frameworks in the two statutes provide for a limitation period of 30 days from the date of delivery of judgment. The two frameworks vest in this court discretionary jurisdiction to enlarge the limitation period. The legislated guiding principle in the two frameworks is that the discretionary jurisdiction should be exercised on the basis of good and sufficient cause. 8.The general jurisprudential principles that guide our courts whenever invited to exercise the above jurisdiction were outlined by the Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v Independent electoral and Boundaries Commission & 7 Others (2014) eKLR as follows:“1.Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;2.A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;3.Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;4.Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;5.Whether there would be any prejudice suffered by the respondents if the extension was granted;6.Whether the application had been brought without undue delay; and;7.Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.” 9.In Mukora Mwangi v Charles Gichina – Civil Application No. Nai 255 of 1997, the Court of Appeal summoned up the following relevant principle:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well-settled that, in general, the matters which this court takes into account in deciding whether to grant an enlargement of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.” 10.In the present application, the judgment was rendered on 9/1/2026. The 30-day limitation period lapsed on 8/2/2026. The plea for enlargement of time was filed on 19/2/2026. There was, therefore, a delay of about 11 days, which in the view of the court, is not inordinate. 11.The explanation tendered by the applicants is that the trial court entered the impugned judgement on 9/1/2026 while on transfer and without notice to him or to his counsel. He deposed that parties could not access the judgement until 16/1/2026 when it was uploaded on the Judiciary’s Case Tracking System. The explanation has not been controverted. In the circumstances, I find the reason advanced by the applicant plausible. 12.On whether the applicant has demonstrated any arguable ground of appeal, the court has looked at the draft memorandum of appeal. Among other grounds, the applicant faults the trial court for dismissing his claim on the ground of lack of a grant of representation under the law of succession. In response, the 1st respondent insists that “Gladys Kaumo” is not her name and that “Milton Mirithu” is a stranger to her. At this point, the court does not make definitive or conclusive findings on the grounds of appeal. All that the court is interested in is whether the applicant has demonstrated a single arguable ground of appeal. An arguable aspect of the itemized grounds of appeal is the handing down of a merit-based dismissal order as opposed to an order striking out the suit on the ground of want of locus standi. To this extent, the court takes the view that the applicant has an arguable ground which warrants an enlargement order. 13.For the above reasons, this court is satisfied that the criteria for enlarging the time for lodging an appeal in this court has been met. Consequently, the applicant is granted an enlargement of 7 days within which to lodge and serve a memorandum of appeal in a new appeal cause. 14.Noting that the delay was caused by the Trial Magistrate, parties will bear their respective costs of this miscellaneous application/suit. DATED, SIGNED AND DELIVERED AT MERU THIS 26TH DAY OF MAY, 2026.B M EBOSO [MR]ELC JUDGEELCL MISC APPLICATION NO. E010 OF 2026– Ruling Page 2