Kiptagich Tea Estates Ltd & another v Koskei (Civil Application E008 of 2026) [2026] KECA 1175 (KLR) (19 June 2026) (Ruling)

Kiptagich Tea Estates Ltd & another v Koskei (Civil Application E008 of 2026) [2026] KECA 1175 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1175 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E008 of 2026 AI Hassan, JA June 19, 2026 Between Kiptagich Tea Estates Limited 1st Applicant Kelelwa Enterprises Limited 2nd Applicant and James Koskei Respondent (An application for extension of time to lodge and serve the record of appeal out of time in the intended appeal from the judgment of the Environment and Land Court at Nakuru (A Ombwayo, J) delivered on 13th February 2025 in ELC No. 258 of 2015) Ruling 1.Before me is a Notice of Motion dated 20th January 2026, brought under Rule 4 of the Court of Appeal Rules, Articles 48, 50 (1) and 159(2) of the Constitution of Kenya, substantively seeking an order for extension of time/ leave to enable the applicants lodge and serve the record of appeal out of time against the judgment of the Environment and Land Court (ELC) at Nakuru in ELC Case No.258 of 2015 delivered on 13th February 2025. 2.The grounds in support of the application are borne on the face thereof and in the affidavit in support sworn by Anthony Mwai, the General Manager of the applicants, on 20th January 2026. 3.In summary, the applicants' averments and submissions are that upon delivery of the impugned judgment, they promptly instructed their erstwhile advocates to lodge an appeal. Pursuant to those instructions, a notice of appeal dated 17th February 2025 was duly filed. However, the said advocates failed to request a certified copy of the typed proceedings and judgment. The applicants maintain that they consistently followed up with their advocates on the progress of the appeal, but were never informed that the requisite request for proceedings had not been made. Owing to the persistent lack of proper communication regarding the status of the appeal, the applicants resolved, at the close of 2025, to instruct another firm of advocates to assume conduct of the matter and pursue the appeal. 4.The applicants further aver that it was only upon perusal of the court file by their newly instructed advocates that they discovered that the former advocates had failed to request certified typed proceedings and judgment. By that time, the statutory period for lodging the appeal had already lapsed. 5.It is contended that the applicants have at all material times believed, based on professional assurances, that the appeal was diligently prosecuted. 6.It is further urged that the respondent does not stand to suffer any prejudice if the orders sought are granted. 7.The respondent did not file any response to the application. The application is therefore unopposed. 8.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], 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.] 9.The Supreme Court has, in Nicholas Kiptoo Arap Korir Salat vs. 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.” 10.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 v 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.” 11.In the instant case and as regards the length of the delay, the impugned judgment was delivered on 13th February 2025. The instant application is dated 20th January 2026. The delay is about 11 months and 7 days. 12.As stated in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet (supra), a plausible and satisfactory explanation is what unlocks the court’s discretion. The applicants attribute the delay to the omissions of their erstwhile advocates, whom they fault for failing to request certified copies of the typed proceedings and judgment. They further censure the said advocates for neglecting to communicate effectively on the status of the appeal, notwithstanding their consistent follow‑ups. 13.This Court has, on numerous occasions, underscored that litigants are the ultimate custodians of their cases and bear the duty to actively follow up on their progress. In Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2015] eKLR, this Court affirmed that parties must demonstrate interest in and diligently pursue their matters, even when represented by counsel. 14.However, from the conduct of the applicants in this matter, I am satisfied that they were not indolent. They promptly instructed their erstwhile advocates to lodge an appeal against the judgment. Although the said advocates filed the notice of appeal as directed, they failed to request typed proceedings. The applicants cannot be faulted for that omission. Thereafter, they made genuine efforts to follow up on the progress of the matter, but their attempts proved futile, ultimately necessitating a change of representation. In the circumstances, I am persuaded that the explanation tendered for the delay is both reasonable and satisfactory. 15.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. 16.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 respondent shall not suffer any prejudice should the orders sought be granted. 17.The totality of my findings, therefore, is that the applicants have 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 the time within which to file the intended appeal. 18.Accordingly, the applicants’ motion dated 20th January 2026 is merited, and the same is hereby allowed. The applicants are to file and serve the record of appeal within thirty (30) days from the date of obtaining the certified typed proceedings and judgment. 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