M’Muraga & another v Nyonyai & another (Civil Appeal (Application) E044 of 2026) [2026] KECA 1584 (KLR) (31 July 2026) (Ruling)

**IN THE COURT OF APPEAL** **AT MERU** **(CORAM: GATEMBU, (P), (IN CHAMBERS))**  **CIVIL APPEAL (APPLICATION) NO. E044 OF 2026 BETWEEN** **JACOB M’LIBURU M’MURAGA.........................1ST APPLICANT** **SAMUEL MBITI LIBURU...................................2ND APPLICANT** **AND** **DCC TIGANIA CENTRAL SUB COUNTY. RESPONDENT** **STELLA NYONYAI.......................INTERESTED PARTY** *(Being an application for extension of time to file a Notice of Appeal from the Judgment of the Environment and Land Court of Kenya at Meru (Oguttu, J.) dated 12th February 2026* ***in*** ***ELC (JR) No. E022 of 2025)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **RULING** 1. Intending to appeal against the judgment of the Environment and Land Court at Meru (**Oguttu Mboya, J.**) delivered on 12th February 2026 in Meru ELC (JR) E022 of 2025, the applicants, Jacob M’Liburu M’Muraga and Samuel Mbiti Liburu, brought the present application dated 15th May 2026 seeking leave to file and serve a notice of appeal out of time. The application is made under Rule 4 of the Court of Appeal Rules. In the said judgment, the ELC dismissed the applicants’ application for judicial review, finding it to lack merit and noting that the court could not substitute its own decision for that of the Minister. 1. Based on the grounds appearing on the face of the application, the supporting affidavit sworn by Samuel Mbiti Liburu, and the written and oral submissions by learned counsel **Miss. Mugo**, the applicants cite extreme financial constraints, which prevented the payment of requisite filing fees and caused a 78- day delay. They contend the delay was not due to negligence or disrespect for court requirements. They urge that the intended appeal is highly arguable and involves significant issues regarding property rights and land administration; that they will suffer grave prejudice if denied the right to appeal; that no prejudice will be caused to either the respondent, Deputy County Commissioner, Tigania Central Sub County or the Interested Party, Stella Nyokai, by granting the extension of time. 2. In opposition to the application learned counsel **Ms. Nyamu** for the interested party relied on a replying affidavit sworn by the Interested Party, Stella Nkonyai, and upon written submissions which she also orally highlighted during the hearing of the application before me on 9th June 2026. It was submitted that the applicants were aware of the judgment upon its delivery but failed to act within the prescribed timelines; that they delayed for approximately three months without providing a reasonable or credible explanation; that the applicants’ claim that they were hindered by financial constraints is not supported by any documentary evidence, such as bank statements or records of fundraising. It was urged that neither have the applicants demonstrated, for instance by annexing a draft Memorandum of Appeal, the specific errors they attribute to the judgment of the ELC to show that the appeal has reasonable prospects of success. 3. It was further urged that the interested party is a senior citizen and a widow who has already endured years of protracted litigation; that allowing the application will cause her immense prejudice as it would unduly prolong the dispute and force her to incur further financial hardship; that the application is an abuse of the process of the court and is merely an attempt to delay the finality of the dispute; and that litigation should come to an end. 1. I have considered the application against the applicable legal principles as pronounced by the Supreme Court of Kenya in the case of ***Salat vs. Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR).*** The Supreme Court in that case stated 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 respondents if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration. 2. In the same vein, this Court in ***Fakir Mohamed vs. Joseph*** ***Mugambi & 2 Others [2005] eKLR Waki***, ***J.A*** stated that: ***“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 Application NAI. 255 of 1997 (UR), Mwangi vs. Kenya*** ***Airways Limited [2003] KLR 486, Major Joseph Mwereri*** ***Igweta vs. Murika M’Ethare & Attorney General Civil Application NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.”*** 1. In effect, although the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules, that discretion should be exercised judiciously and each case must be considered on its own facts. 2. In the present case, the explanation given for the acknowledged delay of over two months is that the applicants “were completely incapacitated” due to “extreme financial constraints” which disrupted their “ability to pay the requisite filing and processing fees on the electronic portal” and that in the intervening period they “organized community support and pooling resources from friends and family”. They however offered no material at all to substantiate those claims. 1. The applicants could have easily supported their claims by providing evidence of their means, their income, their expenses all of which would have assisted the Court in this matter. As it is, there is simply no material placed before the Court by the applicants as a basis for the exercise of the Court’s discretion in their favour. The application fails and is dismissed with costs to the interested party. 2. Orders accordingly. **Dated and delivered at Embu this 31st day of July, 2026.** **S. GATEMBU KAIRU, (P), FCIArb, CArb.** **........................................** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* *Signed* ***DEPUTY REGISTRAR.***