https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1375

Ngina v Mwangi & 2 others (Civil Application E340 of 2025) [2026] KECA 1375 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1375 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E340 of 2025 DK Musinga, JA July 10, 2026 Between Michael Gerald Mbugua Ngina Applicant and John Ndungu Mwangi 1st Respondent Land Registrar, Ruiru 2nd Respondent The Hon Attorney General 3rd Respondent (Being an application for leave to file and serve a Notice of Appeal out of time and for the Notice of Appeal already filed and served to be deemed as duly filed and served on time in respect of an intended appeal against the ruling of the Environment and Land Court at Thika (Mogeni, J.) issued on 28th April 2025 in ELC No. E036 of 2022 (OS)) Ruling 1.Before me is a Notice of Motion dated 19ᵗʰ May 2025 brought under, inter alia, sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Rules of this Court. The orders sought are that the time limitation for the applicant to serve the respondents with the Notice of Appeal be enlarged or be extended to allow the serving of the same within such time as the Court shall deem fit; that the applicant be granted extension of time to file and serve the Notice of Appeal out of time in an intended appeal against the ruling issued on 28ᵗʰ April 2025 in the Environment and Land Court at Thika by Mogeni, J. in ELC E036 of 2022 (OS); that the Notice of Appeal dated 13ᵗʰ May 2025, filed on 15ᵗʰ May 2025 and served on 16ᵗʰ May 2025 be deemed as duly filed and served; and that the cost of the application be provided for. 2.The grounds in support of the application are borne out on the face thereof and in the supporting affidavit sworn by Francis Mburu Machua, learned counsel for the applicant. The applicant contends that the Environment and Land Court at Thika delivered a ruling on 28ᵗʰ April 2025 in ELC E036 of 2022 (OS) allowing the 1st respondent’s application and dismissing the applicant's suit on the ground that it was res judicata. Being dissatisfied with that decision, the applicant on 3rd May 2025 instructed the firm of Mburu Machua & Company Advocates to lodge an appeal. However, since the said firm was not previously on record for the applicant, it was first required to obtain the consent of the former advocates (Njeri Kuria & Company Advocates) in compliance with Order 9 rule 9 of the Civil Procedure Rules, a process which the applicant contends occasioned delay in filing the notice of appeal. The said advocate was nonetheless able to obtain the consent after which he was able to file the notice of appeal dated 13th May 2025 on 15th May 2025 and served it on 16th May 2025. 3.The applicant maintains that the delay was neither deliberate nor attributable to him but arose solely from the procedural requirement of obtaining the requisite consent from his former advocates. The applicant further contends that the delay was inadvertent and excusable, was less than sixty days and therefore not inordinate, that the intended appeal has good chances of success, that no prejudice will be occasioned to the respondents if the application is allowed, and that the Court should exercise its discretion in the interests of substantive justice. 4.The application is opposed by the 1st respondent by way of a replying affidavit. He avers that the applicant has failed to satisfy the threshold for extension of time under rule 4 of the Rules of this Court, particularly with regard to explaining the delay, demonstrating that the intended appeal has chances of success, and showing that the respondents will not suffer prejudice. 5.The 1st respondent further avers that the explanation offered for the delay in lodging the notice of appeal is unsatisfactory. He contends that the applicant instructed the firm of Mburu Machua & Company Advocates on 3ʳᵈ May 2025, eleven days before the statutory deadline of 12ᵗʰ May 2025, thereby affording the advocates sufficient time to obtain the requisite consent from the previous advocates and lodge the notice of appeal within time. He further avers that the request for consent was only transmitted to the previous advocates, Messrs Njeri Kuria & Company Advocates on 13ᵗʰ May 2025, one day after the prescribed period had expired. According to the 1st respondent, the applicant has failed to account for the period between 3ʳᵈ May 2025, when instructions were allegedly issued and 13ᵗʰ May 2025 when consent was first sought, thereby rendering the ten- day delay unexplained and inexcusable. 6.The 1st respondent further avers that the intended appeal is devoid of merit as the Environment and Land Court correctly held that the applicant's suit was res judicata, the dispute having previously been conclusively determined by courts of competent jurisdiction, including Ruiru MCE & L Suit No. E058 of 2021 and Nairobi ELC Appeal No. 16 of 2016. He maintains that the doctrine of res judicata was properly invoked and that allowing the application would undermine the principle of finality in litigation. 7.Lastly, he contends that he stands to suffer prejudice if the application is allowed as he will be compelled to incur further legal expenses in defending an appeal arising from a suit that was rightly dismissed. 8.The applicant has filed written submissions dated 14ᵗʰ November 2025 in support of the application, where he reiterates the arguments advanced in his affidavit in support of the application. Counsel relies on Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, Civil Application No. 251 of 1997 for the factors governing applications for extension of time, Achweya v Onyansi (Civil Appeal E090 of 2024) [2025] KEHC 14 (KLR) on the relevant considerations in such applications, and Gerald Kithu Muchanje v Catherine Muthoni Ngare & another [2020] eKLR for the proposition that there is no prescribed minimum or maximum period of delay, provided the explanation offered is reasonable and plausible. 9.The applicant further submits that the respondents will suffer no prejudice if time is enlarged as they remain in occupation of the suit property, whereas denial of the application would shut him out from pursuing his intended appeal. He relies on Nyamu v Mugambi (Civil Case No. E005 of 2021) [2022] KEHC 405 (KLR) 21 April 2022 (Ruling) and Republic v National Land Commission & 2 others Ex parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) [2018] eKLR to emphasize the constitutional imperative of according parties the right to be heard before determining their disputes. He accordingly urges the Court to allow the application as prayed. 10.On his part, the 1st respondent vide written submissions dated 30ᵗʰ March 2026 reiterates that the applicant has failed to satisfy the conditions for extension of time under rule 4 of the Court of Appeal Rules. Citing Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR, he submits that the Court must consider the length of the delay, the reason for the delay, the chances of success of the intended appeal, and the prejudice likely to be suffered by the respondent. He further relies on Thuita Mwangi v Kenya Airways Ltd [2003] eKLR for the argument that time limits in appeals are substantive requirements and not mere procedural technicalities. According to the 1st respondent, the notice of appeal ought to have been filed by 12ᵗʰ May 2025 but was only filed on 15ᵗʰ May 2025, and the explanation that new counsel had to obtain the consent of previous advocates is inadequate since the applicant had instructed his present advocates on 3ʳᵈ May 2025, thereby leaving ample time to comply with the Rules. In that regard, he relies on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR for the proposition that a party cannot rely on procedural formalities to excuse a delay that is self-inflicted. 11.The 1st respondent further submits that the intended appeal is devoid of merit as the learned judge correctly held that the applicant's suit was res judicata, the dispute having been conclusively determined in previous proceedings. He contends that the applicant has failed to demonstrate any error in the impugned ruling, and that granting the application would subject him to yet another round of litigation over a dispute that has been finally determined. He therefore urges the Court to find that the applicant has not established sufficient cause for the delay and to dismiss the application with costs. 12.I have considered the affidavits and submissions filed by the parties. In Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, (supra) this Court stated:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated 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." 13.The first consideration is the length of the delay. The impugned ruling was delivered on 28ᵗʰ April 2025. Under rule 77(2) of the Rules of this Court, the notice of appeal ought to have been lodged within fourteen days, that is, on or before 12ᵗʰ May 2025.The notice of appeal was, however, filed on 15ᵗʰ May 2025, a delay of three days. In my view, such delay cannot, by any stretch, be described as inordinate. This Court has on numerous occasions excused delays far longer than the present one where a satisfactory explanation has been offered. 14.The next consideration is whether the delay has been satisfactorily explained. The applicant attributes the delay to the fact that upon instructing the firm of Mburu Machua & Company Advocates on 3ʳᵈ May 2025, the said advocates were not the advocates on record in the proceedings before the Environment and Land Court. They therefore had to obtain the consent of the previous advocates, Messrs. Njeri Kuria & Company, pursuant to Order 9 rule 9 of the Civil Procedure Rules before taking any further steps in the matter. The 1st respondent, on the other hand, contends that this explanation is untenable since the applicant's advocates had approximately nine days within which to obtain the requisite consent and file the notice of appeal before the expiry of the statutory period. He further points out that consent was only sought on 13ᵗʰ May 2025, one day after the deadline had lapsed, leaving unexplained the period between 3ʳᵈ May 2025 and 13ᵗʰ May 2025. 15.I have given due consideration to the rival arguments. It is true that the applicant has not satisfactorily accounted for the entire period between 3ʳᵈ May 2025 when instructions were allegedly issued, and 13ᵗʰ May 2025 when consent was first sought from the previous advocates. I also entertain some doubt as to whether compliance with Order 9 rule 9 of the Civil Procedure Rules was, strictly speaking, a prerequisite to the lodging of a notice of appeal under the Rules of this Court. Be that as it may, I do not consider it necessary to determine that question conclusively for purposes of this application. Even assuming that such compliance was necessary, the delay that ultimately resulted was only three days. In the circumstances, although the explanation offered is not entirely satisfactory, I am not persuaded that the applicant's conduct discloses deliberate indolence or such inexcusable delay as would warrant denying him the exercise of this Court's discretion. 16.As regards the chances of the intended appeal succeeding, this Court has repeatedly held that, at this interlocutory stage, it is neither necessary nor appropriate to make definitive pronouncements on the merits of the intended appeal. It suffices if the intended appeal is not frivolous. I note, however, that the applicant did not annex a draft Memorandum of Appeal, thereby denying the Court the benefit of the proposed grounds of appeal. That notwithstanding, the applicant intends to, inter alia, challenge the ruling by which the Environment and Land Court found that his suit was res judicata. Whether that conclusion was correct is a matter that can only properly be determined upon a full hearing of the appeal. I am therefore unable, at this stage, to conclude that the intended appeal is plainly frivolous or wholly devoid of arguable grounds. 17.Finally, on prejudice, the 1st respondent contends that allowing the application would compel him to defend yet another appeal arising from a dispute which, according to him, has already been conclusively determined and is barred by the doctrine of res judicata. I appreciate that concern. Nevertheless, the question whether the learned judge correctly invoked the doctrine of res judicata falls for determination in the intended appeal and cannot properly be resolved at this interlocutory stage. In my view, the prejudice identified by the 1st respondent is no more than the ordinary inconvenience attendant upon defending an appeal and is capable of being compensated by an award of costs. On the other hand, declining the application would effectively deny the applicant the opportunity to challenge the impugned ruling on account of a delay of only three days. I am therefore not satisfied that the prejudice likely to be suffered by the 1st respondent outweighs the applicant's right of appeal. 18.Taking into account the relatively short period of delay, the explanation offered, the absence of undue prejudice to the respondents, and bearing in mind that this Court's discretion under rule 4 is intended to advance rather than impede the administration of substantive justice, I am persuaded that this is an appropriate case in which to exercise that discretion in favour of the applicant. 19.Accordingly, I allow the Notice of Motion dated 19ᵗʰ May 2025. The applicant is hereby granted fourteen (14) days from the date hereof within which to file and serve the notice of appeal. The costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.D. K. MUSINGA……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.