https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1361

Kabwi v Kabunduru (Civil Application E082 of 2026) [2026] KECA 1361 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1361 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E082 of 2026 GV Odunga, JA July 3, 2026 Between Jeremiah Kabwi Applicant and Josphat Kabunduru Respondent Ruling 1.Before me is the applicant’s Notice of Motion dated 20th April 2026 seeking extension of time and to deem the Record of Appeal dated 2nd April 2026 as duly and properly filed and stay of execution of the judgment delivered on 9th October 2025 in Meru ELC Appeal No. E028 of 2023. The application is substantially expressed to be brought pursuant to rules 4 and 5(2) (b) of the Court of Appeal Rules. 2.Rule 55 of the Rules of this Court provides that:1.Each application, other than an application specified in sub-rule (2), shall be heard by a single judge:Provided that such application may be adjourned by the judge for determination by the Court.2.This rule shall not apply to—a.an application for leave to appeal;b.an application for a stay of execution, injunction, or stay of further proceedings;c.an application to strike out a notice of appeal or an appeal; ord.an application made as ancillary to an application under paragraph (a) or (b) or made informally in the course of a hearing. 3.In other words, save for applications for stay of execution, injunction, stay of proceedings, striking out notice of appeal or an appeal and those applications made as ancillary to the aforesaid application or informally at the hearing, all applications before Court are to be heard by a single Judge. Accordingly, the limb of this Motion seeking stay of execution cannot be heard and determined by myself, exercising a single judge jurisdiction. However, the proviso to rule 1 above gives the single Judge powers to adjourn a matter to full bench. Accordingly, it is my view that where an application is expressed in an omnibus manner, as in this case, the single Judge may deal with the limb falling within his jurisdiction while adjourning the limb reserved for the full bench to be dealt with by that bench. In the premises, I will only deal with the application for extension of time. 4.According to the applicant, the delay in filing the record of appeal, which in his view was not inordinate, was not deliberate but arose from a combination of procedural and practical challenges encountered in pursuing the matter. It was deposed that although the applicant took steps towards compiling the record of appeal, there were delays in securing copies of the proceedings. During the period, he disclosed, he instituted parallel proceedings before the ELC with the intention of addressing what he believed to be outstanding and ancillary issues touching on the subject of the appeal. However, the said proceedings, which he admitted were misguided, but which he justified as having been made in good faith, were dismissed on the grounds that they were res judicata and amounted to abuse of the court process. In the applicant’s view, the interest of justice tilts towards the grant of the orders sought. 5.In opposing the application, the respondent filed a replying affidavit sworn on 13th May 2026, wherein he averred: that the application is frivolous, vexatious and abuse of the court process; that the applicant lodged a notice of appeal on 23rd October 2025 and was hence required to file the record of appeal within 60 days but failed to do so; that on 23rd January 2026, this Court, delivered a ruling on a similar application being Civil Application No. E178 of 2025 in which the Court granted the applicant 30 days to file the Record of appeal, hence this application is res judicata; that the applicant instead resorted to filing a separate suit being Meru ELC No. E004 of 2026 on adverse possession on the same subject parcel of land which suit was subsequently dismissed for being res judicata; that the applicant is forum shopping and has squandered his opportunity to prosecute the appeal pursuant to the leave granted by this Court; that by changing his claim from ownership to adverse possession, the applicant is abusing the Court’s process; that the applicant has not given any sufficient reason for the delay in filing an appeal since the delivery of judgment on 9th October 2025 to warrant this court to invoke its discretion; that the applicant's Memorandum of Appeal raises matters of fact yet this court's mandate is restricted to matters of law hence the applicant has not demonstrated that he has good grounds of appeal with chances of success; and that the application lacks merit and should to be dismissed with costs. 6.When the matter was called out for virtual hearing on 3rd June 2026, learned counsel, Ms Zaituni Abubakar, appeared for the respondent while there was no representation for the applicant despite due service of the hearing notice. Ms Abubakar relied on the replying affidavit and added that during the hearing of ELC 004 of 2026, the applicant’s counsel informed the court that the applicant had abandoned the appeal. She added that there was no evidence that the applicants made any follow ups regarding the completion of the proceedings. 7.This Court in Leo Sila Mutiso v Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231 restated the circumstances under which the Court exercises its jurisdiction in extending time and identified the conditions for doing so as: first, the period of the delay; secondly, the reasons for such a delay; thirdly (possibly), whether the proceedings for which time is sought to be extended is frivolous; and fourthly, whether the respondent in those proceedings will be unduly prejudiced if the application were to be granted. See Leo Sila Mutiso v Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231. 8.Those principles were restated by Waki, JA in Fakir Mohamed v Joseph Mugambi & 2 others [2005] eKLR as follows:“The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi vs. Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.” 9.On its part, the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, Supreme Court Application No. 16 of 2014 [2014] eKLR, while expressing itself on the matter, opined that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondent if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration. 10.Those are the main principles to be considered but the list is not exhaustive and can never be exhaustive as the exercise of discretion by itself demands that the Court should not be restricted in its operations. The Court would of course also consider the overriding objective spelt out in sections 3A and 3B of the Appellate Jurisdiction Act. 11.It is clear that in this matter on 23rd January 2026, this Court (Aroni, JA) granted the applicant 30 days within which to regularise his appeal. Instead of complying with the order, the applicant due to his admittedly misguided action, instituted fresh proceedings in the ELC claiming the subject land by way of adverse possession. Those proceedings were eventually dismissed although the applicant has not disclosed when they were dismissed. On 30th April 2026, some three months later, the applicant filed the present application. 12.In the affidavit in support of the application, the applicant does not bring out expressly the fact that he instituted fresh proceedings. He instead vaguely refers to “a combination of procedural and practical challenges encountered in pursuing the matter” such as “delays in securing copies of the proceedings” necessitating his “misguided” decision to institute “parallel proceedings before the ELC with the intention of addressing outstanding and ancillary issues” touching on the subject of the appeal. As Shah, JA held in John Kiragu Mwangi v Ndegwa Waigwa Civil Application No. Nai. 179 of 2000, (UR) a delay to file appeal within time, that is sought to be explained away by contrived grounds cannot be bona fide. 13.The delay between the time was extended to file the appeal to the filing of the present application is a period of about 5 months which is, on the face of it, inordinate. It is explained on the grounds that the applicant instituted fresh proceedings which were found to amount to an abuse of the court process. The applicant does not disclose when the said proceedings were dismissed in order for this Court to determine whether or not there was inordinate delay. Without disclosure of material facts, this Court cannot exercise discretion in favour of a party. 14.The decision whether or not to extend time is an exercise of judicial discretion. This being an exercise of judicial discretion, like any other judicial discretion must on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously, but must be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. See Gharib Mohamed Gharib v Zuleikha Mohamed Naaman Civil Application No. Nai. 4 of 1999. 15.The conduct of the applicant in such proceedings, such as abuse of the court process, may disentitle the applicant from favourable exercise of discretion. In this case, the applicant moved this Court for the exercise of discretion in his favour. Having obtained favourable orders, he abandoned the appellate process and commenced fresh proceedings in a manner reeking of abuse of court process. When that futile voyage failed, he returns to this Court seeking extension of time. I agree with the respondent that the applicant is abusing the process of this Court by engaging in forum shopping. Such a litigant is not deserving of the favourable exercise of the Court’s discretion. 16.In the premises, this application fails and is dismissed with costs to the respondent. 17.It is so ordered. DATED AND DELIVERED AT MERU THIS 3RD DAY OF JULY, 2026.G. V. ODUNGA…………………………….JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR