https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1223

Makokha & another v Mbai & 9 others (Civil Application E024 of 2026) [2026] KECA 1223 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1223 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E024 of 2026 GV Odunga, JA June 12, 2026 Between George Omondi Makokha 1st Applicant Jesus Celebration Ministry International Registered Trustees (Suing Through its Registered Trustee George Omondi Makokha) 2nd Applicant and Wilfred Mbai 1st Respondent Joshua Ogutu 2nd Respondent Jacob Kinyua 3rd Respondent Rael Mukono 4th Respondent Joseph Mutua 5th Respondent Mutinda Mwangangi 6th Respondent Patrick Gitonga 7th Respondent Erick Mwandawiro 8th Respondent The Land Registrar-Meru North 9th Respondent The Honourable Attorney General 10th Respondent (An application for extension of time to file an appeal out of time from the judgment of the Environment and Land Court (B.M Eboso, J.) delivered on 13th October 2025 in Meru ELC Appeal No. E048 of 2024) Ruling 1.Before me is a Notice of Motion dated 16th January 2026 by the applicants seeking leave to appeal out of time against the judgment of the Environment and Land Court at Meru in Meru ELC Appeal No. E048 of 2024, delivered on 13th October 2025. The application is expressed to be brought under Article 50 of the Constitution, sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law. None of the cited provisions expressly donate powers to this Court to extend time for filing of an appeal or for taking any step under the Rules. Counsel ought to take note of the fact that the Rules of this Court are self-contained and where there is an express provision under the Rules dealing with a particular situation, that provision ought to be cited instead of the Civil Procedure Act and rules thereunder, which do not, generally, apply to this Court. In these circumstances, the relevant provision is rule 4 of the Rules of this Court which for avoidance of doubt provides that:The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 2.That notwithstanding, I will consider the application on its merits. 3.The circumstances under which this Court exercises its jurisdiction in extending time are now well settled. These are first the period of the delay; secondly, the reasons for such a delay; thirdly (possibly), whether the proceedings for which time is sought to be extended is frivolous; and fourthly, whether the respondent in those proceedings will be unduly prejudiced if the application were to be granted. See Leo Sila Mutiso v Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231. 4.Those are the main principles to be considered but the list is not exhaustive and can never be exhaustive as the exercise of discretion by itself demands that the Court should not be restricted in its operations. The Court would of course also consider the overriding objective spelt out in sections 3A and 3B of the Appellate Jurisdiction Act. 5.Those principles were restated by Waki, JA in Fakir Mohamed v Joseph Mugambi & 2 others [2005] eKLR as follows:“The exercise of this Court’s discretion under Rule 4… 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, (possibly) 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 factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi vs. Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.” 6.On its part, the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, Supreme Court Application No. 16 of 2014 [2014] eKLR, while expressing itself on the matter, opined 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; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondent if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration. 7.Regarding the length of the delay, the decision sought to be appealed against was delivered on13th October 2025. The Motion is dated 16th January 2026, some three months after the decision which ordinarily is not so inordinate a delay considering that there was Christmas vacation in between. In the case of Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Anor [2014] eKLR it was appreciated that:“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so, on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying court’s mind on the delay, caution is advised for courts not to take the word ‘inordinate’ in its dictionary meaning, but in the sense of excessive as compared to normality.” 8.From that authority, it is clear that the litmus test for inordinate delay is that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. In other words, in determining whether or not the delay is inordinate, it is not a matter of arithmetic. All the surrounding circumstances, including the reason for the delay must be considered by the Court. It was therefore held in Boniface Njuguna Gakuru v Paul Njoroge Gakuru Civil Application No. Nai. 301 of 2009, that:“The Court have, apart from considering the factors which guide the court in the exercise of the court’s discretion under rule 4 of the Court of Appeal Rules, also considered the factors that assist in giving effect to the overriding objective as set out in the Appellate Jurisdiction Act. This is because the 02 principle is the whole objective of the Appellate Jurisdiction Act and therefore the 02 principle is both substantive and procedural. The factual basis is that the total delay occasioned was 37 days which period elapsed as the applicant made arrangements to change representation and the I have also taken into account that the matter involves ownership of land. In addition, I have also taken into account the apparent arguability of what prima facie appears to be a substantive jurisdictional issue touching on the initial tribunal and the decision subsequent making bodies and thus my inclination is to grant a reasonable extension of time. Since the purpose of the overriding objective is to enable the Court to do justice in the special circumstances of each appeal, I consider that in the special circumstances before me (to the effect that the applicant’s erstwhile advocate had advised her that there was nothing more that could be done), preventing the applicant from having an appeal which touches on jurisdiction heard on merit because of a delay of 37 days and which has been satisfactorily explained would be unjust.” 9.The applicants contend that the delay was occasioned by the fact that their advocates, Ngunjiri Michael and Company Advocates, were relocating from Rehema Plaza, 2nd Floor to Rehema Plaza, 1st Floor, as a result of which some files, including the applicants’ file was forgotten or inadvertently misplaced and could not be traced for a few days despite a diligent internal search. Consequently, the advocates were unable to compile and file the Record of Appeal within the prescribed period. They further aver that the delay was exacerbated by the intervention of the Court Christmas recess as well as the closure of the advocates' offices during the Christmas holidays. The contention is supported by the fact that the documents filed by their advocates in early 2025, indicate that their offices were situate at Rehema Plaza, 2nd Floor, while documents filed later in 2025 show that the offices had relocated to Rehema Plaza, 1st Floor. According to the applicants, the intended appeal is highly meritorious with great chances of success as per the grounds of appeal set out in the Memorandum of Appeal. 10.In opposition, the 1st respondent avers that there is no plausible reason given by the applicants to justify the delay which in his view, is inordinate and unreasonable. He lamented that the applicant is a perennial defaulter in compliance with the timelines, including the first appeal before the ELC. In the 1st respondent’s view, the applicants’ said habit is meant to keep the respondents in court in a litigation which has no foreseeable ending. To the 1st respondent, the reason given for the delay, the misplacement of the file, is self- defeating and unreasonable. In any case, he contended, the appeal is not arguable at all as it is clear the applicants' suit in the trial court violated the mandatory requirements of section 9(1) of the Fair Administrative Action Act. 11.I have considered the application, the affidavits both in support of and in opposition to the application as well as the submissions on record. As I have stated hereinabove, the delay is not in the circumstances, inordinate. The reasons for the delay was that the applicants’ advocates were relocating and in the course of that event, the applicants’ file was misplaced. In my view the reason given is plausible as the applicants have adduced documents supporting that fact. While the applicants’ advocates could have exercised more diligence, such mistakes have been known to occur but as this Court held, in Shital Bimal Shah & 2 Others v Akiba Bank Limited [2006] 2 EA 323, while citing Murai v Wainaina (No. 4) [1982] KLR 38:“Mistakes of counsel come in all shapes and sizes but some have been rejected by the Court such as total inaction by counsel disguised as a mistake. A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by a senior counsel though in the case of junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interest of justice so dictate.” 12.Ringera, AJA, as he then was in Githiaka v Nduriri [2004] 2 KLR 67 held that:“Under rule 4 of the Court of Appeal Rules the court is perfectly invested with a clear and unfettered discretion to extend the time limited by the Rules or its decisions and such a discretion like all judicial discretions, is to be exercised judicially, that is to say on sound reason other than whim, caprice, or sympathy. In exercising the discretion the Court’s primary concern should be to do justice to the parties and in considering which way the scales of justice tilt, the Court should among other things consider the length of the delay in lodging the notice and record of appeal and, where applicable, the delay in lodging the application for extension of time, as well as the explanation therefore; whether or not the intended appeal is arguable; and the public importance, if any, of the matter, and generally the requirements of the interest of justice in the case… Oversight has been defined to mean the omission or failure to see or notice. It is inadvertence. Whilst ignorance may not be equated to a mistake, it may and normally does arise through negligence.” 13.Appreciating that oversight on the part of counsel may warrant extension of time, Shah, JA when faced with a similar situation in Michael Njoroge B. & Others v Vincent Kimani Chege Civil Application No. Nai. 217 of 1997 held that advocates may have many things to deal with leading as a result of which an oversight may lead to delay in rectifying mistakes and that such mistakes should not be visited on the client and that the Court of Appeal being the last court ought to give a litigant a chance to be heard on merits. The learned single Judge appreciated that if an error is remediable, the client ought to be heard. 14.In Mwangi v Mwangi [1999] 2 EA 234, it was held, while citing Njoroge “B” And Others v Chege [1997] LLR 614 B (CAK); Macfoy v United Africa Company Ltd [1962] AC 152; Pantin v Wood [1962] 1 QB 594 that:“Rules of procedure are said to be good servants but bad masters. This is not to say that they can be flouted with impunity. All rules have their specific purpose(s) but a rule of procedure should not drive a litigant out of judgement seat if other rule(s) allow such a litigant to come back to Court. The tendency of the court of last resort ought to give a chance to the litigant to be heard on merits as far as possible. Our rules of procedure have had their origin in England and the tendency in England is to move away from form to substance…Simple inaction by a lawyer coupled with client’s careless attitude may be enough to say: “I am not going to exercise my discretion” but when the litigant himself shows that he is doing his best the Court ought to exercise its discretion which is wide enough, subject only to the requirement of justice to both sides. Procedural requirements are designed to further the interests of justice and any consequences which would achieve a result contrary to those interests should be treated with considerable reservation.” 15.I am therefore satisfied that the reason given for the delay is, in the circumstances of this case, justifiable. Regarding the past conduct of the applicants, where a party is exercising an undoubted right of appeal, the past conduct, unless contumelious and intended to mislead, may not be the sole determinant factor in the exercise of discretion. Waki, JA, while citing Grindlays Bank International (K) & Another v George Barbour Civil Application No. Nai. 257 of 1995 and Gichuhi Kimira v Samuel Ngunu Kimotho & Another Civil Application No. Nai. 243 of 1995 in Janet Ngendo Kamau v Mary Wangari Mwangi Civil Application No. Nai. 338 of 2002 held that:“Unless there is fraud, intention to overreach, inordinate delay or such other circumstances disentitling a party to the exercise of the Court’s discretion, the Court should in so far as it may be reasonable prefer, in the wider interest of justice, to have a case decided on its merits…The consideration that one case should not hang over the heads of parties indefinitely must be weighed against the wider interests of justice, namely that where possible cases must be brought to a close after a hearing on the merits.” [Emphasis mine]. 16.The prospects of success of the intended appeal, while a possible factor for consideration, however, does not apply in all cases. Dealing with that consideration, this Court in Mwangi v Kenya Airways Ltd [2003] KLR 486, where the court stated:“It is clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “the chances of an appeal succeeding” is normally dealt with by this Court under the rubric of “an arguable appeal” or “an appeal which is not frivolous” and the full court normally considers that issue under rule 5(2)(b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case of Bhaichan Ghagwanji Shah v D Jamnadas & Co. Ltd [1959] EA 838 where Sir Owen Corrie, Ag. JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:‘…….. It is thus essential in my view, that an applicant for an extension of time under r 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting application.’” 17.The court then observed that the Shah case (ante) was decided under rule 9 of the former rules which required that “sufficient cause” be shown before extension of time could be obtained. It then concluded: -“It must not be forgotten that even the recent case of Mutiso did not lay it down that the single judge is obliged to consider the issue of the chances of an appeal succeeding; the case only put that issue down as one for possible consideration.” 18.In Ramesh Shah v Kenbox Industries Limited [2007] eKLR, this Court debunked the myth surrounding the arguability of the intended appeal in applications of this nature by observing that:“The issue therefore arises as to whether the arguability of an intended appeal would outweigh all other relevant factors open for consideration in applications under rule 4. For our part we think, that except in very exceptional and limited circumstances, that proposition is not acceptable and is not borne out by authority. Indeed, it is open to abuse. At its absurd best, it would mean that a party who for no or no sufficient reason sleeps over his right of appeal for ages, may one fine morning wake up and persuade the court that he had an arguable appeal after all and ought therefore to be allowed to appeal despite the delay.” 19.While in certain borderline cases the Court may consider the chances of success of the intended action, in my view, that condition plays a very peripheral role where the other conditions have been fulfilled particularly where the applicant has a right to take up the proceedings in question. 20.As regards the issue of prejudice, I cannot see any. Lakha, JA in Touring Cars (K) Ltd & Anor v Ashok Kumar N. Mankanji Civil Application No. 78 of 1998, was of the view that rule 4 of the Court of Appeal Rules confers the widest measure of discretion in an application for extension of time and draws no distinction whatsoever between the various classes of cases and that the rule clearly requires the Court to look at the circumstances and recognises the overriding principle that justice must be done. He further held that prejudice or lack of it is a highly relevant matter in considering the justice; it may be an all-important one. 21.It is now appreciated that the broad approach under the current constitutional dispensation is that unless there is fraud or intention to overreach, an error or default that can be put right by payment of costs ought not to be a ground for nullifying legal proceedings unless the conduct of the party in default can be said to be high handed, oppressive, insulting or contumelious. In Chemwolo and Another v Kubende [1986] KLR 492; [1986-1989] EA 74, it was held that:“Unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs since the Courts exist for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.” 22.Where it is not shown that there is fraud or intention to overreach and an innocent party may adequately be compensated in costs, cases ought as far as possible be determined on their merits rather than on technicalities of procedure. In this case, I did not hear the respondent contend that if the application is allowed they will suffer such prejudice that cannot be compensated by an award of costs. 23.It has been said there is one panacea which heals every sore in litigation and that is costs. Seldom, if ever, do you come across an instance where a party has made a mistake which has put the other side to such advantage or that it cannot be cured by the application of that healing medicine. See Waljee’s (Uganda) Ltd v Ramji Punjabhai Bugerere Tea Estates Ltd [1971] EA 188. 24.In the circumstances of this case, I find that this is a just and proper case to exercise discretion in favour of the applicant. I accordingly allow the Notice of Motion dated 16th January 2026. I extend the time limited for filing and service of the Memorandum and Record of Appeal with a further period of 14 days from the date of this ruling. 25.The costs of this application are awarded to the respondents. 26.It is so ordered. DATED AND DELIVERED AT MERU THIS 12TH DAY OF JUNE, 2026.G. V. ODUNGA..................................JUDGE OF APPEALI certify that this is the true copy of the originalDeputy Registrar