https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1096

Gichimu (Suing on Their Own Behalf and on Behalf of Members of South Samburu Group Ranch) v Njane (Civil Appeal E035 of 2025) [2026] KECA 1096 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1096 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E035 of 2025 F Tuiyott, JA June 12, 2026 Between Paul Mwaura Gichimu Appellant Suing on Their Own Behalf and on Behalf of Members of South Samburu Group Ranch and Christopher Gichimu Njane Respondent (Being an application for extension of time to file an Appeal out of time from the Judgment of Environment and Land Court at Malindi (Njoroge Mwangi, J.) Dated 19th December, 2024 in ELCLA NO. E031 OF 2023) Judgment 1.By an application dated 12th June 2025 brought pursuant to rules 4 and 5(2)(b), 31, 47, 53 and 54 of the Rules of this Court, the applicant seeks the following orders:1.Spent2.That this Honourable Court be pleased to enlarge time and the period within which the Appeal ought to be filed and therefore grant leave to the Appellant/Applicant herein to file his Appeal out of time and the Memorandum of Appeal together with the Record filed herein be deemed to be proper and duly filed.3.Spent4.That upon granting prayer (2) above, this Honourable Court be pleased to issue an Order of temporary Stay of Execution of the Judgment, Decree and subsequent Orders of the Environment and Land Court at Malindi delivered on the 19th December, 2024 in Malindi ELCLA No. E031/2023 by Hon. Justice Mwangi Njoroge pending hearing determination and final disposal of the Appeal.5.That costs of the Application be costs in the cause. 2.As a single judge, I cannot consider the application for stay as I am limited by the provisions of rule 55(2)(b) of Rules of this Court (See for example Kenya Industrial Estates Ltd v Samuel Sang & another [2008] eKLR). 3.To the application for extension of time. In support is the applicant’s affidavit sworn on even date where he deposes that the ELC at Malindi delivered a judgment on 19th December 2024 which set aside a previous subordinate court judgment (Mpeketoni Principal Magistrate’s Court Land Case No. E010 of 2022) delivered on 14th December 2023 in his favour and substituted it with an order allowing the respondent's claim. He stated that his advocate had promptly filed a notice of appeal on the same day (19th December 2024) and applied for certified copies of the proceedings on 20th December 2024. However, he explained that a significant delay occurred because his lead counsel, Mr. Omwancha, was involved in a bad bathroom accident on 2nd January 2025, which resulted in ruptured nerves in his hip and required intensive treatment. This accident left the advocate completely immobilized and unable to attend to his office duties or prepare the record of appeal until his recent recovery. The applicant further contended that the respondent had obtained a defective and illegal decree from the Subordinate Court in Mpeketoni rather than the Environment and Land Court, which was then used to intimidate and threaten him with eviction. He highlighted that the O.C.S. Kibaoni Police Station had already summoned him and ordered the demolition of his homestead, where he had lived for over 30 years with his family. He argued that the delay in filing the appeal was not deliberate but was due to circumstances beyond his control, specifically noting that the actual delay was only 27 days past the 60 days deadline falling on 19th February 2025. Furthermore, he asserted that his intended appeal raised substantial points of law and had overwhelming chances of success and that failing to grant the extension would cause him irreparable harm and render him destitute. Finally, he implored on the Court to exercise its discretion to grant the extension of time to ensure the administration of justice and protect his beneficial interest in the suit property. 4.The application is unopposed. 5.The applicant filed submissions which are substantially a regurgitation of the position taken in his affidavit. 6.Rule 84 makes provision for institution of appeals and reads: -“(1)Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged-a.a memorandum of appeal, in quadruplicate;b.the record of appeal, in quadruplicate;c.the prescribed fee; andd.security for the costs of the appeal.Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such times may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.(2)An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was served upon the respondent.(3)The period limited by sub-rule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction.” 7.The applicant duly filed a notice of appeal dated 19th December 2024, within the required timelines. Similarly, within time, was his request for typed proceedings and certified copies made on 20th December 2024. There is also a filed record of appeal dated 12th June 2025 which the applicant seeks to be deemed as properly on record. 8.According to the applicant, the delay was caused by his erstwhile advocate’s inadvertent inaction due to a serious accident on 2nd January 2025 which rendered him bed-ridden and immobilized. The said advocate resumed his duties (I am not told when) and filed this application seeking extension of time. The application is dated 12th June, 2025 and is brought six (6) months after the notice of appeal was filed. The appeal itself ought to have instituted on or before 12th March 2025 (excluding the Christmas recess 2024 beginning on 21st December 2024 and ending on 12th January 2025 worked out in accordance with rule 3(e) of the Rules of this Court as read with section 26 of the Court of Appeal (Organization and Administration) Act). There was an estimated delay of three (3) months before this application was filed. This delay, not inordinate in the circumstances of this case, has been accounted for by a plausible explanation, which I believe. 9.In exercise of the discretion granted by rule 4 of the Rules of this Court, considered within the parameters set out in Fakir Mohamed v Joseph Mugambi & 2 others [2005] KECA 340 (KLR, I allow the notice of motion dated 12th June 2025 in terms of prayer no. 2. The record of appeal filed on 12th June 2025 is hereby deemed as duly filed and served. Costs shall be in the intended appeal. DATED AND DELIVERED AT MOMBASA THIS 12TH DAY OF JUNE, 2026.F. TUIYOTT.........................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR