https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1181

Gicheha v Waitherero & 6 others (Civil Application E007 of 2026) [2026] KECA 1181 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1181 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E007 of 2026 AI Hassan, JA June 19, 2026 Between Joseph Ngure Gicheha Applicant and Serah Waitherero 1st Respondent The District Land Registrar 2nd Respondent The Commissioner of Lands 3rd Respondent Director of Surveyors 4th Respondent The District Surveyor 5th Respondent The Hon Attorney General 6th Respondent Gillete Traders Auctioneers 7th Respondent (An application for extension of time to file a notice and record of appeal in the intended appeal from the judgment of the Environment and Land Court at Nakuru (Kariuki, J.) delivered on 2nd June 2022 in ELC No.260 of 2017 Environment & Land Case 260 of 2017 ) Ruling 1.Before me is a Notice of Motion dated 13th January 2026, brought under Rule 4 of the Court of Appeal Rules and all other enabling provisions of the law, substantively seeking an order for extension of time/ leave to enable the applicant lodge and serve a notice of appeal and record of appeal out of time against the judgment of the Environment and Land Court (ELC) at Nakuru in ELC Case No.260 of 2017 delivered on 2nd June 2022. 2.The grounds in support of the application are borne on the face thereof and in the affidavit in support sworn by the applicant on 13th January 2026. 3.In summary, the applicant’s averments and submissions are that he was indisposed at the time the Environment and Land Court at Nakuru delivered its judgment in ELC Case No. 260 of 2017. Owing to his indisposition, he was unable to attend court or follow up on the status of the matter. He further explains that he subsequently lost contact with the Advocate who had conduct of the case and only became aware of the contents of the judgment three years later, upon making enquiries after recovering from his illness. 4.It is contended that the intended appeal raises serious and arguable issues of law and fact. However, a draft memorandum of appeal has not been annexed to the affidavit in support of the application. 5.It is further urged that the applicant stands to suffer grave injustice if the orders sought are not granted. 6.The respondents did not file any response to the application.The application is therefore unopposed. 7.I have considered the application, grounds in support thereof, the submissions, as well as the law. Rule 4 of the Court of Appeal Rules does not provide for factors that the court ought to consider in an application for extension of time, but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231, which is the locus classicus, 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.” [Emphasis supplied.] 8.The Supreme Court has, in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR, further distilled the principles which courts ought to consider when determining applications for extension of time. These principles are:“i)Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.ii.A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court.iii.Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis.iv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.v.Whether there will be any prejudice suffered by the respondents if the extension is granted.vi.Whether the application has been brought without undue delay; andv)Whether in certain cases public interest should be a consideration for extending time.” 9.These principles guide my determination herein. As regards the length of delay, in Sentrim Kenya Limited vs. CFC Stanbic Bank Limited [2021] KECA 648 (KLR) this Court stated that there is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, this Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.” 10.In the instant case and as regards the length of the delay, the impugned judgment was delivered on 2nd June 2022. The instant application is dated 13th January 2026. The delay of about 3 years and 7 months is manifestly inordinate. 11.As stated in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet (supra), a plausible and satisfactory explanation is what unlocks the court’s discretion. The applicant avers that at the time of delivery of the judgment, he was indisposed and thus unable to attend court or follow up on the status of the matter. Ill‑health is a circumstance beyond the control of a litigant, and when sufficiently demonstrated, it constitutes a legitimate impediment to the timely pursuit of legal remedies. Unlike mere negligence or indolence, indisposition is involuntary and strikes at the very capacity of a party to act. I find the explanation offered by the applicant reasonable and plausible. 12.As to the arguability or otherwise of the intended appeal, it would not be in my place to determine the same sitting as a Single Judge, and I will therefore not delve further into this issue. 13.Finally, on prejudice, the respondent did not oppose the application despite being served with both the application and the hearing notice. I find that the respondents shall not suffer any prejudice should the orders sought be granted. 14.The totality of my findings, therefore, is that the applicant has demonstrated and satisfied the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time within which to file the intended appeal. 15.Accordingly, the applicant’s motion dated 23rd March 2026 is merited, and the same is hereby allowed. The applicant is to file and serve the memorandum and record of appeal within thirty (30) days from the date of this ruling. Costs of the application to abide by the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 19TH DAY OF JUNE, 2026.AHMED ISSACK............................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR