https://new.kenyalaw.org/akn/ke/judgment/keca/2026/965

Kavithi v Mumo alias Mbisi Daniel & 3 others (Civil Application E077 of 2026) [2026] KECA 965 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 965 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E077 of 2026 P Lilan, JA May 15, 2026 Between Magdalene Wayua Kavithi Applicant and Freizer Mumo alias Mbisi Daniel 1st Respondent Jonah Kavithi Daniel 2nd Respondent Lukenya Ranching Society 3rd Respondent County Land Registrar 4th Respondent (Application for extension of time to file and serve Notice of Appeal from the Judgment of the Environment and Land Court at Machakos (C. Ochieng, J) dated 29th April 2024 in ELC Nos. 7 of 2015 & 45 of 2018) Ruling 1.The Application dated 26th February 2026, made pursuant to Rule 4 of the Court of Appeal Rules, 2010 (now 2022), seeks extension of time within which to serve the notice of appeal dated 6th May 2024 as well as the record of appeal filed on 4th February 2026; and that costs be provided for. The Application is supported by the affidavit of even date sworn by Magdalene Wayua Kavithi. The applicant was sued in Machakos ELC No. 7 of 2021 and Machakos ELC No. 45 of 2018 which were concluded and judgment entered on 29th April 2024. 2.The applicant was aggrieved by the outcome, and instructed Counsel to file an appeal. A Notice of Appeal dated 6th May 2024 was subsequently filed and duly signed by the deputy registrar on 16th May 2024. The applicant avers that the typed proceedings were provided after delay and upon obtaining a certificate of delay, the record of appeal dated 14th December 2025 was then presented for filing but was rejected numerous times by the e-filing system until 4th February 2026. Service upon the respondents was effected on 6th February 2026. The applicant avers that the delay in filing the record of appeal was well accounted for within the time it took to obtain the typed proceedings, and the short period when her counsel experienced e-filing system glitches which were beyond her control. It is further averred that delay was not a deliberate nor inordinate and that the intended appeal has chances of success. Additionally, it is further urged that the mistake of an advocate ought not be visited upon an innocent litigant. 3.In opposing the application, the 1st respondent by a replying affidavit dated 4th March 2026, deposes that the time-frame for filing the application as stipulated under Rule 79 of the Court of appeal Rules 2022, lapsed; that there was no proof of rejection of filings through the e-filing system from 15th December 2023 until 4th February 2024; that in any event the delay of 1 year 9 months was inordinate since no sufficient explanation given. 4.The 2nd respondent similarly opposes this application and filed a replying affidavit dated 12th May 2026 which essentially mirrors the 1st respondent’s replying affidavit stating that the delay was inordinate; and that no sufficient reason had been proffered to explain the delay; applicant had not provided evidence to prove the alleged technical hitches in attempting to upload documents through the e-filing system. 5.Has the Applicant met the requirements for granting relief under Rule 4 of the Court of Appeal Rules? I have considered grounds set out on the face of the application, the affidavits on record as well as the written submissions of both parties. Rule 4 of the Court of Appeal Rules, 2022, gives the court unfettered discretion in deciding whether to grant an applicant extension of time, subject to such discretion being exercised judiciously as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi, Civil Application No. Nai 255/97 (unreported), which pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others (2013) eKLR. 6.In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR M’Inoti, JA. had this to say concerning Rule 4:“A look at legislative history of Rule 4 will show that before 1985 the rule required an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 7.Exercise of discretion is largely dependent on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. The beacons that demarcate the exercise of the subject discretion are the guiding principles handed down by the Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR prescribes as follows: -i.Extension of time is not a right to 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 extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.iv.Where there is 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 Respondent if extension is granted.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be a consideration for extension of time.One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie the intended Appeal has chances of success or is a mere frivolity. 8.The key aspect in my determination is what to make of the Applicant‘s fairly straightforward explanation in the supporting affidavit, which in a nutshell is the time it took to be furnished with the typed proceedings and the apparent temporary technical hitches of the e-filing system. Both respondents are of the view that the delay has not been sufficiently explained and further that there is no proof of the e-filing system glitch. 9.The other issue for consideration is whether there has been inordinate delay. I take note, in agreement with the 1st and 2nd respondents, that it is evident that there has been delay. In arguing that the delay is not inordinate, the applicant, draws from the case of Imperial Bank Ltd (in receivership) & Another v Alnashir Popat & 18 Others [2018] KLR, on explanations issued for delay. 10.Certainly a year and a half is not a short period but that length of time juxtaposed with reasonable explanation as to what took place in context during that time, may well end up being described as not inordinately long. The applicant also submitted on mistake on part of advocate which should not be visited on the innocent litigant, as part of the reason for delay. This assertion is to be viewed in the light of the expectation that crucial steps in mounting an appeal where a party us represented (such as requesting and obtaining typed proceedings, drawing, filing and serving necessary documents including notice of appeal and record of appeal) all are done by the counsel on record. More often than not, the diligence and industry of counsel can make a difference in achieving statutory timelines in filing and serving court processes. It is therefore not to be taken lightly when a litigant falls back on ‘mistake of counsel’ even though I hasten to add that caution must be exercised to avoid abuse if this window. In Anastasius H. Kamau v Karen Insurance Brokers Limited [2008] eKLR, where J. Aluoch, JA found that delay of 3 months (90) days was not inordinate; and in any event and without prejudice to the foregoing, from the explanations furnished, the mistake/lapse, if at all, was on the part of the applicant’s advocates which should not always lead to dismissal of applications for extension of time. Also see the case of Murai vs Wainaina (No.4) [1982] KLR 33 (Madan, JA as he then was) 11.The explanation given for the delay is satisfactory. It is admitted by all parties that a certificate of delay was obtained by the applicant. The applicants also submits that there was a glitch in the e-filing system which led to the documents being rejected several times, though both the1st and 2nd respondents are of the view that there was no evidence on the alleged glitch. This court is of the opinion that in this day and age of technology, there is always the probability of glitches and that being said this court will give the benefit of the doubt to the applicant. This court also notes that despite the delay, the applicant has served the record of appeal. 12.On the issue as to whether or not the Intended Appeal has chances of success, it is not the role of a single judge to determine the merits or otherwise of the Appeal. This Court has held in the case of Athuman Nasura Juma v Afwa Mohammed Ramadhan CA 227 of 2015:“…this court has to be careful to ensure that the intended Appeal has merit or not is not an issue to be determined with finality by a single Judge”.I must bear this in mind whilst determining the present application, the less said on this point, the better. 13.From the foregoing, I find that the delay is not inordinate. I also find that the applicant has demonstrated sufficient reasons to explain the delay. I therefore hold that the application dated 29th February 2026 is merited and is allowed. Consequently the applicant is to regularize the position by filing and serving a record of appeal afresh within 14 days from the date of this ruling. Costs of the application is awarded to the 1st and 2nd respondents. 14.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026PAUL LILAN...................................JUDGE OF APPEALI certify that this is a true copy of the original SignedDeputy Registrar