https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1176

Malindi Musketeers Ltd v Attorney General & another (Civil Application E003 of 2026) [2026] KECA 1176 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1176 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Application E003 of 2026 SO Okong'o, JA June 19, 2026 Between Malindi Musketeers Limited Applicant and The Hon Attorney General 1st Respondent The Land Registrar Kilifi 2nd Respondent (An application for extension of time to file and serve a Notice of Appeal and Record of Appeal out of time in an intended appeal from the Judgment and Decree of the Environment and Land Court at Malindi (Mwangi Njoroge, J.) delivered on 7th October 2025 in ELC Case No. 50 of 2014) Ruling 1.On 7th October 2025, the Applicant’s suit against the Respondents was dismissed by the Environment and Land Court (ELC) at Malindi. In its suit before the ELC, the Applicant had claimed from the Respondents a refund of the purchase price of the parcel of land known as Chembe/Kibabamshe/420 (suit property) in the sum of Kshs.3,000,000/-, compensation for the loss of the suit property at the prevailing market rate, exemplary damages in the sum of Kshs. 150,000/-, and the costs of the suit together with interest. The ELC found that the Applicant had no valid title to the suit property and, as such, was not entitled to any of the reliefs sought against the Respondents. The ELC found the documents of title held by the Applicant to be “of dubious origin” and could not be a basis for an award of compensation or exemplary damages. 2.What is now before me as the Applicant’s Notice of Motion application dated 19th January 2026, seeking extension of time to serve the Notice of Appeal and a Record of Appeal against the said Judgment of the ELC. The application, which is supported by the affidavit of Daniel Ricci dated 19th January 2026, was based on several grounds. The Applicant averred that, following the delivery of the impugned judgment of the ELC, its previous advocates filed a Notice of Appeal within the prescribed time and wrote a letter to the Deputy Registrar of the ELC requesting for typed proceedings; that the Notice of Appeal though filed timeously was not served upon the Respondents; that its previous advocates had given it an assurance that they would take all necessary steps to file the appeal; that it was until 15th January 2026, that it learnt that its previous advocates had not filed the appeal; that it was upon that realization that it engaged its current advocates to take up the matter; that the present application was filed without undue delay; that the intended appeal was arguable; and that no prejudice would be occasioned to the Respondents if the application was allowed. The application was not opposed by the Respondents. 3.When the application came up for hearing, learned counsel Mr. Nyongesa appeared for the Applicant. There was no appearance for the Respondents, although they were served with a hearing notice. Mr. Nyongesa relied on his written submissions dated 13th May 2026, which he briefly highlighted. In his written submissions, Mr. Nyongesa reiterated the averments in the affidavit in support of the application. He submitted that the application was filed immediately the Applicant learnt that its previous advocates had not filed the appeal; that there was no delay in the filing of the application; that the reason for the delay in serving the Notice of Appeal had been explained; that the delay was not inordinate; that the intended appeal was arguable; and that since the Respondents had not responded to the application, any likelihood of prejudice to them if the application was allowed had not been shown. 4.I have considered the Applicant’s application together with the affidavit filed in support thereof. I have also considered the Applicant’s oral and written submissions. Rule 4 of the Court of Appeal Rules 2022 (Rules) provides as follows:“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or a superior court, for the doing of any act authorized or required by the 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.” 5.In the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court laid down the following general principles on the exercise of discretion in applications for extension of time:“84.From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.85.……, we derive the following as the under- lying principles that a court should consider in exercise of such discretion: 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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 6.Rule 4 of the Rules gives this court unfettered discretion to grant an extension of time. That discretion must, however, be exercised judiciously. The Applicant had a duty to lay a proper basis for the order sought. The Respondent has not contested the Applicant’s claim that as soon as the impugned judgment was delivered, the Applicant’s previous advocates filed a Notice of Appeal and wrote a letter to the Deputy Registrar of the ELC requesting for typed proceedings for the purpose of an intended appeal, which letter was copied to the advocates for the Respondents. There is also no dispute that the said advocates, Murgor & Murgor Advocates, never took any further steps in the matter towards the filing and prosecution of the appeal. The Applicant’s contention that it was not until 15th January 2026 that he learnt of the said advocates’ failure to file the appeal within time has not been controverted. 7.I am satisfied that the Applicant has given a reasonable explanation for its failure to serve a Notice of Appeal and file a Record of Appeal within the prescribed time. The Applicant has also demonstrated diligence, as he brought the present application soon after learning that his previous advocates had neither served the Notice of Appeal nor filed the Record of Appeal. 8.The upshot of the foregoing is that the Applicant’s application dated 19th January 2026 has merit. The same is allowed. The Applicant shall serve the Notice of Appeal against the Judgment and Decree of the Environment and Land Court at Malindi delivered on 7th October 2025 upon the Respondents within 7 days from the date hereof; and shall file and serve the Record of Appeal within 21 days of service of the Notice of Appeal. Each party shall bear its costs of the application. DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF JUNE, 2026.S. O. OKONG’O..............................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR