https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3035

Kiiru v Mugiyu (Environment and Land Appeal E018 of 2021) [2026] KEELC 3035 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 3035 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Appeal E018 of 2021 EK Makori, J May 13, 2026 Between Joel Kamitha Kiiru Applicant and Beatrice Wanjiru Mugiyu Respondent Ruling 1.Before the Court is the Applicant’s Notice of Motion application dated 6th November 2024 seeking an order that the time be extended to file a Notice of Appeal against the judgment delivered herein on 20th March 2024. 2.The application is supported by the affidavit of the Applicant, who deposed that at the time of judgment on the 20th of March 2024 and immediately thereafter, he had not understood the same until he managed to obtain a copy of it in November 2024. 3.He then decided to appeal against that judgment and instructed his present advocates, only to be informed that the time to file the intention to appeal had since lapsed. 4.His view is that the reason for the delay in filing the intention to appeal is excusable due to his lack of procedural knowledge on the court process and being unaware of the contents of the judgment in time. 5.He states that he will suffer prejudice if denied the chance to file the intended appeal, as the suit land is his only parcel of land, together with his family. The Respondent’s Replying Affidavit 6.The Respondent filed a replying affidavit sworn on the 17th of April 2025. She deposes that the judgment was pronounced in the Applicant’s presence and all rights were explained to him by the sitting Judge. 7.Thus, the Respondent contends that the excuses given for the eventual delay in filing the appeal are insecure and frivolous and that the instant application is an afterthought. 8.The Respondent noted that after this Court awarded her costs of the appeal and in the trial court, the Applicant was served with a Bill of Costs dated 16th August 2024. She stated that this application is aimed at frustrating her from the fruits of justice, the quiet enjoyment of her property, and compensation for the costs. 9.She highlighted that the Applicant’s Counsel has all along been drafting court pleadings, prosecuting his case, and appealing the same without any delay. That he is now feigning ignorance, which he is being dishonest about. 10.The Respondent further highlighted that the Applicant has not filed a draft Memorandum of Appeal to demonstrate the viability of his intended appeal. 11.She prayed that the application be dismissed for not meeting the threshold for the Court’s indulgence, but in the event it is granted, that the Applicant be ordered to deposit security for costs. The Applicant’s Submissions 12.The Applicant relied on section 7 of the Appellate Jurisdiction Act on the Court’s power to grant an extension of time, as well as Rule 4 of the Court of Appeal Rules, and relied on the decision in Standard Chartered v Abok(2005)1 EA 373. 13.It is submitted that the fact that the Applicant was acting in person contributed to the delay in filing the intended appeal, the reasons for which are not inordinate nor inexcusable. 14.Counsel relied on the authority in the case of African Airlines International Ltd vs Eastern and Southern African Trade and Development Bank (2003)1EA 1. Analysis and determination 15.The Applicant herein seeks an extension of time to file his Notice of Appeal from this Court’s judgment delivered on March 20, 2024. 16.Rule 61 of the Court of Appeal Rules requires that anyone intending to file an appeal before the Court of Appeal file a Notice of Appeal within 14 days of the decision they intend to appeal. I quote the provision below:“A person who desires to appeal to the Court shall give notice in writing, which shall be lodged in six copies with the registrar of the superior Court at the place where the decision against which it is desired to appeal was given, within fourteen days after the date of that decision, and the notice of appeal shall institute the appeal.” 17.Rule 64(5)(a) also states that:“Notwithstanding subrule (1), the registrar of the superior court shall not prepare the record of appeal where—(a)the notice of appeal has been lodged out of time, until the registrar has been notified that the time has been extended by order of the superior court or of the Court or the President otherwise directs.” 18.A significant amount of time has passed between this Court's judgment on March 20, 2024, and the Applicant's filing of the application dated November 6, 2024. It is also evident from the above provision in Rule 64(5)(a) of the Court of Appeal Rules that a notice of appeal for which the time to file has lapsed must first be granted an extension of time to be filed, which is a discretionary power of the Court. 19.Section 7 of the Appellate Jurisdiction Act, Cap. 9, provides as follows:“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.” 20.The Applicant relied on the decision of the Court of Appeal in Standard Chartered Bank Limited & another v Peter Oguko Abok & another [2005] KECA 190 (KLR) in which it was held as follows:“I am satisfied therefore that the applicants have explained to my satisfaction why they did not perfect the appeal within the time set by the rules. The explanation is indeed reasonable and I accept it. Moreover, there are weighty issues arising from the decision of Warsame J. thus rendering the intended appeal meritorious.In my view, the applicants have not been guilty of any laches in that they have acted expeditiously in the pursuit of leave to appeal out of time, albeit proceeding in a wrong direction. As they have shown a determination to canvass their intended appeal before this Court, I think there is no justifiable reason to deny them their quest. After all the respondents will not suffer any undue prejudice if the applicants are allowed to lodge an appeal out of time. The decretal sum has been fully paid to them and they will be compensated for by way of costs if the appeal does not succeed.” 21.The Court of Appeal in the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, which is the locus classicus case for extension of time, laid down the parameters as follows:“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 extension 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.” This was reiterated by Odek, JJ.A in Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR, as,“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court, including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...” 22.The Applicant’s reason for seeking an extension of time is his inability to understand the judgment, which was obtained only much later. However, the record shows that the Appellant appeared in person for the reading of his judgment in Court. If he had not understood it, he had the opportunity to clarify it with the Court. 23.Further, the Applicant has not annexed a draft memorandum of appeal for this court to assess whether the appeal has a chance of success, and has not given the grounds for intending to file an appeal other than that he has an interest in the suit land. 24.In my view, the application dated 6th December 2024 does not satisfy the criteria for an extension of time as outlined in the Leo Sila Mutiso Case (Supra). It is without merit and is accordingly dismissed with costs. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 13TH DAY OF MAY 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Ngarua for the RespondentKendi: Court AssistantIn the absence of:Mr.Kingori for the Applicant