https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1259

Mwangi (Suing through Joseph Njoroge Murage) v Waigichu (Civil Application E023 of 2026) [2026] KECA 1259 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1259 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E023 of 2026 SG Kairu, JA July 3, 2026 Between Julius Waigichu Mwangi Applicant Suing through Joseph Njoroge Murage and Dorothy Njambi Waigichu Respondent (Being an application for extension of time to file a Notice of Appeal out of time from the Judgment of the Environment and Land Court of Kenya at Nairobi (T. Murigi J.) dated 5th December 2025 in ELC Case No. E159 of 2023) Ruling 1.In his application dated 19th January 2026, the applicant Joseph Waiguchu Mwangi, through Joseph Njoroge Murage, seeks an order for extension of time to lodge a notice of appeal out of time against a judgment delivered by the Environment and Land Court in Nairobi on 5th December 2025. In that judgment the ELC (Murigi, J) dismissed the applicant’s suit in which he had sought orders to restrain the respondent, Dorothy Njambi, from interfering with the property known as LR No. 1160/346 (Nairobi/Block 148/32) and for a declaration that he is the owner. 2.Intending to challenge that judgment before this court, he lodged a notice of appeal before the ELC on 19th January 2026 which was outside the 14 days period stipulated under the Court of Appeal Rules. The notice of appeal should have been filed by 19th December 2026 at the latest. That did not happen, hence the present application for extension of time. 3.The explanation given by the applicant’s agent is that the judgment of the ELC was only uploaded onto the e-filing platform on 16th December 2025 (3 days to the statutory deadline) and it was thereafter forwarded to him by his advocates in the United States of America where he is based; that he was unable to access the e-filing platform of the court until after the end of year festivities and also had difficulties reaching his agent on telephone. 4.The respondent in her replying affidavit in opposition to the application deponed that an appeal can only lie on matters of law; that the intended appeal is incompetent as it is on matters of fact and re-evaluation of the evidence; that leave to appeal was neither sought nor obtained and the court has no basis in exercising discretion in aid of a process that the law does not permit; that the applicant is seeking to re- open a concluded matter. 5.I heard the application on 11th March 2026. Learned counsel Miss. Nyokabi Ndungu appeared for applicant. There was no appearance for the respondent despite notice of hearing having been served. Citing the decision in Leo Sila Mutiso vs. Hellen Wangari Mwangi [1999] 2 EA 231, among other precedents, counsel for the applicant alluded to the factors for consideration in matters of this nature and submitted that such factors vary depending on the circumstances of each case; that in the present case the delay period includes the December festive season; that the time for filing the memorandum and record of appeal was yet to lapse by the time the present application was made; that the intended appeal has merit; and that the applicant has met all the elements required to unlock the exercise of discretion in his favour. 6.Counsel for the respondent on the other hand submitted that without leave, there is no competent intended appeal and rule 4 of the Court of Appeal Rules cannot be invoked to validate a process the law does not permit; that in any case, the applicant has not offered a reasonable explanation for failing to seek leave, a mandatory jurisdictional pre- requisite, it was submitted; that a mistake of the advocate or ignorance of the law cannot cure the omission; and that no satisfactory explanation is offered. Moreover, it was submitted, the court restrains itself from interfering with factual findings, and allowing the present application would unjustly re-open concluded factual determinations. 7.I have considered the application, the affidavits and the submissions by learned counsel. Although under rule 4 of the Court of Appeal Rules the court has unfettered discretion to extend time, that discretion should be exercised judiciously. Justice Waki, JA. explained the legal principles in that regard in the case Fakir Mohamed vs. Joseph Mugambi & 2 Others (Civil Application No. Nai. 332 of 2004) KECA 340 (KLR) where he stated that:“The exercise of this court’s discretion under rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it 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, (possible) 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 factor.” 8.Similarly, the Supreme Court of Kenya in the case of Salat vs. Independent Electoral and Boundaries Commission & 7 Others (Application No. 16 of 2014) [2014] KESC 12 (KLR) pronounced 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; and that delay should be explained to the satisfaction of the court. Other considerations include whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay. Public interest is also a relevant consideration. 9.The present application has primarily been opposed by the respondent on grounds that the intended appeal is incompetent, in addition to the contention that the delay involved is not satisfactorily explained. The matter of competence of the intended appeal, is a matter that would fall for consideration by the court on an application under rule 86 of the Court of Appeal Rules. It is not a matter presently before the court. I will say no more on that. 10.As regards the explanation tendered by the applicant, the judgment of the ELC was delivered on 5th December 2025. As already indicated, the notice of appeal should have been filed by the 19th of December 2026. It was not filed until 19th January 2026 alongside the present application. The period of Christmas recess from 21st December 2025 to 13th January 2026 is excluded for purposes of computing time by dint of rule 3(e) of the Court of Appeal Rules. With that in mind, it has been asserted that the applicant was at the time based in the United States of America and communication during the festive season posed a challenge. Although no evidence was presented in that regard, for instance by way of extract of a passport, I note that the claim that he is based outside the country is not contested by the respondent and the fact that the applicant is appearing through another person might give credence to that claim. I am prepared to give the applicant the benefit of doubt and accept that explanation as plausible and exercise the court’s discretion in his favour. 11.In the result, I allow the application. The notice of appeal dated 19th January 2026 is deemed as duly filed and served. The applicant shall file and serve the memorandum and record of appeal within 30 days from the date of delivery of this ruling. 12.The applicant shall pay the respondent’s costs of this application. 13.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026.S. GATEMBU KAIRU, FCIArb, CArb………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR