https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1248

Marigi & another v Sarich & 4 others (Civil Application E215 of 2026) [2026] KECA 1248 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1248 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E215 of 2026 AO Muchelule, JA July 3, 2026 Between Peter Gathigi Marigi 1st Applicant Daniel Gichuru Marigi 2nd Applicant and Sammy Arekai Sarich 1st Respondent Mary Jelagat Sarich 2nd Respondent Joan Njeri Kagema 3rd Respondent Julius Okello Wamaya 4th Respondent The Land Registrar, Kajiado North 5th Respondent (Being an application for extension of time to file and serve the notice and record of appeal from the judgment of the Environment and Land Court of Kenya at Kajiado (M.D. Mwangi, J.) dated 30th October 2025 in ELC Case No. E048 of 2024) Ruling 1.Vide motion dated 23rd March 2026 pursuant to Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act, the applicants herein seek an extension of time for the filing and serving of the record of appeal. Secondly, that the notice and record of appeal herein be deemed as duly filed. 2.It was urged that following the delivery of the impugned judgment on 30th October 2025, the applicants requested for the certified copies of the proceedings on 31st October 2025. The applicants had equally filed the notice of appeal on 4th November 2025, collected the signed and stamped copy on 11th November 2025, and effected service on the respondents on 12th November 2025. The letter bequesting proceedings was served on 4th November 2025. The requested proceedings were only ready for collection on 30th January 2026, despite continuous follow up by the applicants. A certificate of delay was duly obtained on 13th February 2026 and served on 24th February 2026. Owing to errors apparent on the certificate of delay, the same was returned and re-issued on 5th March 2026, which was subsequently served on 6th March 2026. It was urged that delay in filing the appeal was excusable and cannot be attributed to the applicants. It was further pointed out that the respondents had filed a motion vide Civil Application No. E736 of 2025, seeking to struck off the certificate of delay, notice and record of appeal, accordingly. 3.The 1st and 2nd respondents oppose the Notice of Motion dated 23rd March 2026 on the basis that they are the successful parties in ELC Appeal No. E048 of 2024, where judgment was delivered in their favour on 30th October 2025, but they have been unable to enjoy the fruits of that judgment due to ongoing status quo orders in Civil Application No. E736 of 2025 restraining transfer of land parcel Ngong/Ngong/31482. They argue that the present application would further delay execution of an already successful judgment and prolong their prejudice. 4.They further deny ever receiving the Applicants’ alleged letter dated 31st October 2025 requesting certified copies of proceedings, stating that no affidavit of service has been produced and that they only became aware of it through a separate application. They also challenge the Applicants’ explanation for delay, pointing to inconsistencies in the service of the Notice of Appeal and the absence of a satisfactory account for the timeline. In addition, they fault the Certificate of Delay for being defective on its face citing the wrong cause number and an incorrect enabling provision and note that it was returned for correction before a revised version was served, thereby undermining its reliability. 5.Finally, the respondents contend that the record of appeal was filed without leave of the Court, rendering the process irregular, and that the applicants have failed to meet the threshold for enlargement of time. On this basis, they maintain that the application is unmerited, lacking in a credible explanation for delay, and is aimed at frustrating the implementation of a lawful judgment, and they therefore pray that it be dismissed with costs. 6.In rebuttal, it was deposed that the respondents are not prejudiced in any way with the prevailing status quo orders. It was reiterated that indeed service of the letter bequesting proceedings dated 31st October 2025 was effected on 11th December 2025 as evidenced in the affidavits of service dated 15th December 2025 and 6th April 2026. That the 1st and 2nd respondents were again served on 6th March 2026 with all letters requesting proceedings dated 31st October 2025, 4th November 2025, 24th November 2025 and 28th January 2026 as evidenced in the affidavits of service dated 6th March 2026 and 6th April 2026. It was restated that the notice of appeal was duly filed on 4th November 2025. Due to delays in getting the same signed and stamped at the court’s registry, the same was served on the 1st and 2nd respondents on 11th November 2025. The applicants restated the re-service of the corrected certificate of delay as issued on 5th March 2026. The applicants thus filed the record of appeal on 17th March 2026. 7.The background herein is that the dispute concerned ownership of Ngong/Ngong/31482, arising from a 2008 sale agreement under which the 1st and 2nd respondents agreed to purchase the suit property (together with an adjoining parcel) for Kshs.1,050,000, paying Kshs.770,000 and leaving a balance of Kshs.280,000. The 1st and 2nd respondents contended that they had substantially performed the contract, taken possession, and complied with completion-related obligations, but that the applicants, 3rd, 4th and 5t respondents unlawfully rescinded the agreement without issuing any completion or default notice and subsequently transferred the property to the 3rd and 4th respondents herein. They further argued that the transfer process was irregular, that their entries in the land register were improperly cancelled without due process, and that the subsequent purchasers had constructive notice of their interest due to their possession of the land. The applicants, 3rd and 4th respondents, on the other hand, maintained that payment of the full purchase price was a condition precedent to transfer, that the 1st and 2nd respondents’ failure to pay the balance constituted a fundamental breach, and that the property was lawfully resold to the 2nd and 3rd respondents who acquired valid title as bona fide purchasers for value without notice. 8.The trial court accepted the applicants’ position, holding that the 1st and 2nd respondents’ failure to complete payment resulted in automatic rescission of the contract, that the transfer to the 3rd and 4th respondents was valid, and that no fraud had been proved. It further found that the 3rd and 4th respondents were bona fide purchasers for value without notice and therefore protected under the doctrine of indefeasibility of title, leading to dismissal of the claim for specific performance. On first appeal, however, the superior court found that the trial court erred in treating the contract as automatically rescinded, since time was not of the essence and no statutory completion or rescission notice was issued under sections 39 to 41 of the Land Act. The superior court also emphasized that the 1st and 2nd respondents had made substantial performance and were in possession, factors which reinforced the conclusion that termination could not arise without due process. 9.The superior court further held that the subsequent transfer was procedurally irregular and incapable of protection under section 26 of the Land Registration Act, as the 1st and 2nd respondents had an existing equitable interest and were in possession, thereby imposing a duty of inquiry on any prospective purchaser. While the Court did not make a conclusive finding of proved fraud against the 3rd and 4th respondents, it found that the circumstances surrounding cancellation and re-registration were unprocedural and inconsistent with statutory safeguards. Consequently, the superior court allowed the appeal, set aside the judgment of the trial court, upheld the validity of the sale agreement, and granted specific performance in favour of the 1st and 2nd respondents, directing transfer of the suit property upon payment of the balance of the purchase price, while cancelling the title held by the 3rd and 4th respondents and awarding costs to the 1st and 2nd respondents herein. 10.The applicants submitted that delay in serving the notice of appeal was caused by the delay in the signing of the same. That the certificate of delay as initially issued by the superior court was erroneous and was thus returned to the registry for collection. A new certificate was re-issued on 6th March and duly served upon the 1st and 2nd respondents. It was urged that no prejudice would be occasioned upon the 1st and 2nd respondents if the motion was allowed. 11.The 1st and 2nd respondents contend that the applicants failed to demonstrate forthwith service of the letter requesting proceedings as required under Rule 84(1), since no affidavit of service was produced and both respondents deny receipt of the alleged letter dated 31st October 2025; accordingly, they argue that the Applicants cannot exclude the period for preparation of proceedings, with the result that the 60-day period ran from 4th November 2025 and lapsed on 4th January 2026, rendering the appeal deemed withdrawn under Rule 85(1). They further submit that the appeal cannot be revived through Rule 4, which is a prospective discretionary provision incapable of validating a procedurally dead appeal, and that filing the record of appeal without first obtaining leave of the Court was irregular. In addition, they argue that the applicants’ unexplained one-day delay in serving the Notice of Appeal, despite collection of the stamped copy on 11th November 2025, disentitles them to the Court’s discretion under Rule 4, and that reliance on Article 159(2)(d) cannot cure non-compliance with mandatory procedural rules. Finally, they assert that granting the application would occasion substantial prejudice, as they remain unable to enjoy the fruits of a judgment delivered on 30th October 2025, with the continued subsistence of status quo orders in Civil Application No. E736 of 2025 perpetuating delay in transfer of land parcel Ngong/Ngong/31482, thereby undermining the finality of litigation and infringing their proprietary rights under Article 40 of the Constitution. 12.In considering the Notice of Motion dated 23rd March 2026 brought under Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act, I am called upon, as a single Judge of this Court, to determine whether the applicants have made out a case for enlargement of time to file and serve the record of appeal, and whether the notice and record of appeal already on record should be deemed as duly filed and served. 13.I am guided by the well-established principles governing the exercise of discretion under Rule 4 as set out in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231 (CAK) and consistently applied in Fakir Mohamed -vs- Joseph Mugambi & 2 Others Civil Application No. 332 of 2004 and Stanley Kang’ethe Kinyanjui -vs- Tony Ketter & 2 Others Civil Application No. 31 of 2013. From these authorities, it is clear that the discretion of the Court is unfettered but must be exercised judicially, taking into account the length of delay, the explanation for the delay, the arguability of the intended appeal, and the prejudice likely to be suffered by either party. 14.On the issue of delay, I find that the Notice of Appeal was filed on 4th November 2025, shortly after delivery of judgment on 30th October 2025, and that the applicants requested certified copies of proceedings on 31st October 2025. I further find that the proceedings were not availed until 30th January 2026, whereupon a Certificate of Delay was issued on 13th February 2026 and subsequently corrected and reissued on 5th March 2026. I also find that service of the request letters and related correspondence has been demonstrated through affidavits of service marked as “PGM-2”, “PGM-3” and “PGM-7”, which prima facie confirm that the applicants took prompt steps to pursue preparation of the record of appeal. 15.Accordingly, I find that the delay in filing the record of appeal is largely attributable to the time taken in preparation of proceedings and subsequent administrative correction of the certificate of delay, and not to indolence or dilatory conduct on the part of the applicants. 16.On the explanation for delay, I find that the applicants have offered a reasonable and credible explanation supported by documentary evidence. Although the respondents contest receipt of certain correspondence and challenge the validity of the certificate of delay, I find that these are contested evidentiary issues that are not capable of definitive resolution at this interlocutory stage. In the absence of clear evidence of bad faith or fundamental defect, I find no sufficient basis to reject the applicants’ explanation. 17.On arguability of the intended appeal, I find that although the applicants did not expressly address this limb in their submissions, the Court is entitled to derive it from the memorandum of appeal annexed to the application. The memorandum raises seventeen grounds of appeal, including issues challenging the finding that the agreement for sale had been lawfully rescinded, the retrospective application of the Land Act, 2012 among others. I find that these disclose substantial and bona fide questions of law and fact which are not frivolous and merit consideration by the full Court. 18.On prejudice, I find that the 1st and 2nd respondents have demonstrated that they are the successful parties in the superior court and that enforcement of the judgment has been affected by subsisting status quo orders relating to the suit property. I also find, however, that the applicants stand to be shut out from pursuing an appeal raising substantial issues affecting proprietary rights and statutory interpretation. I find that while the 1st and 2nd respondents’ prejudice is real, it is substantially mitigated by the existence of preservation orders and does not, in the circumstances of this case, outweigh the interests of justice in allowing the matter to be heard on appeal. 19.Taking all the foregoing into account, I find that this is a proper case for the exercise of discretion under Rule 4 in favour of the applicants. The delay has been satisfactorily explained, service of relevant correspondence has been demonstrated, an arguable appeal has been disclosed, and the balance of prejudice tilts in favour of sustaining the right of appeal. 20.The motion dated 23rd March 2026 is allowed. The time limited for filing and serving the record of appeal is hereby extended. The record of appeal already on record be deemed as duly filed and served. 21.The applicants shall bear the costs of the motion. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.A.O. MUCHELULE........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.