https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1090

Nyaga v Kagunga & 3 others (Civil Application E021 of 2026) [2026] KECA 1090 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KECA 1090 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E021 of 2026 HI Ong'udi, JA June 5, 2026 [IN CHAMBERS] Between Jacob Njeru Nyaga Applicant and Gregory Mwaniki Kagunga 1st Respondent Geceremina Ngai Njeru (Sued as the Legal Administrator of the Estate of Njeru M. Njama) 2nd Respondent Land Registrar Embu West 3rd Respondent The Hon. Attorney General 4th Respondent (Being an application to extend time to file an appeal out of time from the judgment of the Environment & Land Court of Kenya at Embu by (K. Bor, J) delivered on 8th December 2025 in ELCA E006 of 2024) Ruling 1.The applicant filed the notice of motion dated 23rd February 2026 under Rule 4 of the Court of Appeal Rules, in which he seeks extension of time to file an appeal against the judgment of K. Bor, J delivered on 8th December 2025. He further seeks leave to file appeal out of time, to file and serve record of appeal out of time plus costs. 2.The application is supported by the grounds on its face plus the applicant’s supporting affidavit sworn on 23rd February 2026. To his application is annexed a notice of appeal dated 10th December 2025. He has averred that the delay in filing the appeal was not intentional as he was let down by the new advocate he had engaged, forcing him to return the file to his former advocate. He further depones that the intended appeal raises arguable points of law and fact and so should be heard on merit. He has annexed a draft memorandum of appeal marked “C”. 3.The application was opposed by the 1st respondent vide his replying affidavit sworn on 31st March 2026. He deponed that the notice of appeal “B” was never served on his advocate as required. Further, that there is no evidence of a request for typed proceedings nor help from another advocate. He averred that the intended appeal does not raise any arguable ground being a second appeal and is therefore not merited. 4.The applicant filed written submissions dated 18th May 2026 through the firm of Waweru Nyambura & Co. Advocates. Learned counsel while referring to the cases of: Fakir Mohammed v. Jospeh Mugambi & 2 Others (Civil Application No. Nai. 332 of 2004) and Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (Civil Application No. Nai. 255 of 1997) which set out what the court needs to consider in this kind of application. These are:a.the length of delay,b.reason of delay,c.chances of the appeal succeeding andd.the degree of prejudice to the respondent if the application succeeds.On delay, counsel submitted that the delay after the 60-day period is weeks and not months and so is minimal. Further that the explanation given for the delay is plausible, having promptly filed the notice of appeal. 5.Learned counsel submitted that the draft Memorandum of Appeal raises several arguable grounds which he has listed. Reference was made to the case of Andrew Kiplangat Chemaringo v. Paul Kipkorir Kobet [2018] eKLR where the court held that an arguable appeal does not mean one that must succeed. It means one that raises a bonafide issue worthy of consideration by the court. 6.On the last issue, learned counsel submitted that the mere fact that a successful party wishes to execute a decree is not sufficient ground to deny an extension of time where an applicant has shown good cause. Relying on Mwangi v. Kenya Airways Ltd [2003] KLR 486, he submitted that prejudice to the respondent must be substantial. It was his argument that the applicant had bought the suit land from the 2nd respondent and paid Kshs. 500,000/= after visiting the property. That all processes were followed and he was later issued with a title deed by the Land Registrar to L.R. No. Kyeni/Kagumo/3253. To him the grounds raised are arguable. He thus urged the court to allow the application and grant the Orders sought. 7.The 1st respondent filed written submissions dated 19th May 2026 through the firm of Mutegi Kithaka & Co. Advocates. Learned counsel submitted that Rule 79 (1) of the Court of Appeal Rules requires service of the notice of appeal on the parties appealed against. In this case she contended that the said notice “B” was not served. That the applicant has not sought leave to file the said notice out of time. 8.On the enlargement of time to lodge and serve the appeal out of time, learned counsel submitted in line with Andrew Kiplagat Chemaringo (supra) that no satisfactory reason for the delay had been given by the applicant. That the reason given is vague, as there is no evidence of the typed proceedings having been sought for. Further that no reason had been given for not filing an appeal since 10th December 2025 when he purportedly filed a notice of appeal. She relied on the case of Hako Agencies Limited v. Wilfred Odhiambo Musingo [2015] KELA 987 KLR in support of her argument. Counsel urged the court to dismiss the application with costs. 9.It is noted that no responses nor submissions were filed by the 2nd, 3rd and 4th respondents in respect of this application. 10.When the application came for hearing in the plenary on 22nd May, 2026, learned counsel Ms. Mutegi appeared for the 1st respondent, while learned counsel Mr. Gachari held brief for Mr. Waweru Nyambura for the applicant. There was no appearance by the 2nd, 3rd, and 4th respondents. M/S Mutegi informed the court that the 2nd respondent was deceased. From the impugned judgment it is shown that the 2nd respondent passed on during the pendency of the suit and no substitution was made, within a year under Order 24 Rules 4 and 7 of the Civil Procedure Rules. The court found the suit against the 2nd respondent to have abated. 11.Both Mr. Gachari and M/S Mutegi relied on their written submissions. 12.I have carefully considered the application, both affidavits and submissions and the law. The notice of appeal “B” dated 10th December 2025 herein was lodged at the ELC Registry Embu on the same day. The applicant did not serve the said notice as is required under Rule 79 (1) of the Rules. It is however admitted by the 1st respondent that the notice “B” is one of the documents annexed to the current application. In view of that, this court deems the said notice of appeal to have been served on the respondents, upon service of this application even though belatedly. 13.The applicant has explained why after lodging the notice of appeal “B” no action was taken within the required period of 60 days. The truth in this reason is neither here nor there. It is however clear that the 60 days lapsed on 11th February 2026 and the current application dated 23rd February 2026 was then lodged. This was 12 days outside the required 60 days timeline and is excusable. 14.The next issue for determination is whether the intended appeal raises arguable grounds. This is a land matter that was first heard by the subordinate court and came on appeal before the ELC Embu. The issue is about the genuinity of the title in respect of land L.R. Kyeni/Kagumo/3253. The ELC Embu set aside the judgment of the subordinate court, hence the desire by the applicant to file the intended appeal. This court finds this issue to be arguable and the parties ought to be heard on the same as was held in the case of Andrew Kiplangat Chemaringo (supra). 15.I find the applicant to have satisfied the two main grounds for consideration in granting an order for extension of time under Rule 4 of the Court of Appeal Rules for filing an appeal out of time. 16.In conclusion, the notice of motion dated 23rd February, 2026 is hereby allowed on the following terms:i.The notice of appeal dated 10th December 2025 is deemed to have been served on the respondents when they were served with the notice of motion dated 23rd February 2026.ii.The applicant to file and serve a Memorandum of Appeal within 14 days from today’s date.iii.The applicant to file and serve the Record of Appeal within sixty (60) days from today’s date.iv.Costs to abide the outcome of the intended appeal. 17.Orders accordingly. DATED AND DELIVERED AT THIS 5TH DAY OF JUNE, 2026.H. I. ONG’UDIJUDGE OF APPEALI certify that this is the true copy of the originalDEPUTY REGISTRAR