https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1634

Kide & another v Sawe & 3 others (Civil Application E033 of 2025) [2026] KECA 1634 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1634 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E033 of 2025 MN Nduma, JA July 31, 2026 Between Philip Pkopus Kide 1st Applicant Paul Kide 2nd Applicant and Simon Kipsang Sawe 1st Respondent District Land Adjudication & Settlement Officer 2nd Respondent Director Land Adjudication & Settlement 3rd Respondent The Attorney General 4th Respondent (Being an application to set aside the order for dismissal from the decision of the Eldoret Court of Appeal (J. Mativo, JA) delivered on 12th June, 2025 in Civil Application No. EO33 of 2025) Ruling 1.The Notice of Motion application dated 13th June 2025, seeks an order that the Court be pleased to set aside the order of dismissal made on 12th June 2025 dismissing applicant’s application dated 23rd April 2025 for leave to file an appeal out of time. That the application be reinstated and heard on the merits. That the Court also do grant leave to file submissions out of time and the annexed draft submissions be deemed duly filed and costs be in the appeal. 2.The application is premised on grounds set out on the face of the application and augmented in the supporting affidavit of Advocate Jepsongol Tallam, for the applicant to wit that upon filing the application dated 23rd April 2025, the Court on 9th June 2025 issued directions on the same and the directions were sent to the parties via email. That despite the directions being sent to the Advocate’s office via email by the Court, the same went to spam folder and was not immediately seen by the office. That this error was detected on 11th July 2025 a day to the set hearing date and became difficult to comply with the filing and service of written submissions. 3.That the failure was not intentional and the applicant has without much delay brought this application and prepared the required submissions to enable deal with the dismissed application on the merits. That the mistake of counsel should not be visited on the client and the Court should exercise its judicial discretion to allow the application. 4.That the intended appeal is arguable and no material prejudice will be occasioned to the respondent if the application is allowed as they will defend the reinstated application before Court. 5.The applicant has reiterated the aforesaid grounds in his written submissions dated 14th July 2026 and relies on the case of Omar Shurie v. Marian Rashe Yafar [2020] KECA 492 (KLR) where this Court held that administrative omissions that are not contumacious conduct constitute excusable reasons for delay and innocent litigant must not be driven from the judgment seat due to blunders by counsel. 6.The 1st respondent filed a replying affidavit and deposes that the application is incompetent and devoid of merit since no plausible explanation is given why the applicant did not attend court on 12th June 2025 having retrieved the spam mail on 11th June 2025. Further there is no good explanation why they served the said court directions 12th June 2025, a month later. That this application was filed on 13th June 2025, when execution process for costs were set on motion and no tangible steps were taken to expedite hearing of this application from June 2025 to January 2026. That litigation must come to an end and the respondent stands to be prejudiced if the dismissed application is reinstated. The respondents did not file written submissions. 7.The jurisdiction of a single judge under rule 4 and 58(3) of the Court of Appeal Rules, 2022 to extend time and reinstate dismissed appeals is unfettered, guided by the principles set out in Leo Sila Mutiso v Hellen Wangari Mwangi [199] 2 EA 231 which require the court to evaluate the length of delay, the reason for delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent. 8.This Court has no reason to doubt the explanation given by counsel for the applicant that the mail from the court giving directions for filing and service of submissions and the court attendance erroneously went to spam mail and was not immediately seen by the office. The Court is also satisfied that this application was filed two days upon discovery of the error and a day after the order dismissing the application dated 23rd April 2025 was issued. The respondents will have opportunity to defend the reinstated application and do not stand to suffer prejudice that cannot be remedied by way of costs. 9.Accordingly, this application is allowed. The application dated 23rd April 2025 is reinstated. The submissions attached to this application are deemed duly filed. The respondents to file written submissions within seven (7) days of this ruling and the matter to be set down for hearing thereafter. Costs in the appeal. DATED AT DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.NDUMA NDERI………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR