https://new.kenyalaw.org/akn/ke/judgment/keca/2026/975

Muhia & another v Mbucho (Acting on his own Behalf and as Personal Representative of the Estate of Teresa Minji Mbucho (Deceased) & 2 others (Civil Appeal (Application) E902 of 2023) [2026] KECA 975 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 975 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E902 of 2023 JO Okello, JA May 15, 2026 Between Margaret Wangui Muhia 1st Applicant George Muhia Kariuki 2nd Applicant and Joseph Munji Mbucho (Acting on his own Behalf and as Personal Representative of the Estate of Teresa Minji Mbucho (Deceased) 1st Respondent Eunice Wanja Mbuchi 2nd Respondent George Muniu Mbuchi 3rd Respondent (An application for extension of time to serve Notice of Appeal out of time against the judgement of the Environment and Land Court of Kenya at Thika (Eboso, J.) dated on 16th October, 2023 in Civil Appeal No. E537 of 2023 Environment and Land Appeal E040 of 2021 ) Ruling 1.The Notice of Motion dated 3rd February, 2026, is filed by the applicants pursuant to Section 3A and 3B of the Appellate Jurisdiction Act, Rules 4 and Rule 77 of the Court of Appeal Rules, 2022 and all other enabling provisions of the law seeking leave to serve their Notice of Appeal out of time and that their Notice of Appeal served on the respondents in the applicants’ application for injunction dated 26th October, 2023 be deemed as properly served on the respondents. 2.The applicants’ case is premised on the grounds stated on the face of the application and their supporting affidavits of Ruth Wanyonyi, learned counsel on record for the applicants, sworn on 3rd February, 2023 on behalf of the applicants. 3.The firm of Wanyonyi & Muhia Advocates is on record for the applicants while the firm of Wambua, Samuel Advocates is on record for the Respondent. The hearing notice was duly served via email on 14th April, 2025 where the applicants and the respondents were reminded to comply with the directions issued in regard to service and filing of written submissions before the hearing date. 4.Hearing of this application is by way of written submissions. The applicants filed their written submissions dated 11th February, 2026, and a list of authorities of the same date. The application is opposed by the respondents vide their replying affidavit dated 6th March, 2026 and have also filed their written submissions dated 14th April, 2026 together with a list of authorities. 5.The applicants aver that that on 18th October, 2023 the applicants prepared and filed a notice of appeal which was filed and signed by the Deputy Registrar on 19th October, 2023. That together with the notice of appeal, the applicants filed an application for injunction in Civil Appeal No. E490 of 2023 which was served on the respondents through their counsel on record and where the said notice of appeal was attached; that the applicants subsequently lodged the appeal and have already filed and served the parties. They aver that they recently realised that in the course of their preparation for the hearing of the appeal that the notice of appeal was served on the respondents as an annexure in the application for injunction but the same was not served on the respondents as a single document. 6.The applicants further submits that the delay in serving the notice of appeal was an honest oversight, omission and inadvertent mistake on the part of the applicants’ counsel, that the delay to serve the notice of appeal on the respondents being a total of 5 days is excusable, and would not prejudice the respondent if the orders sought are granted, as they have been aware and in possession of a copy of the notice of appeal since 30th October, 2023 when the applicants served them with the application for injunction as an annexure and have further been served with the record of appeal. 7.The applicants rely on the case of Katiba Institute vs Attorney General & 9 Others, Petition [2021] KESC 25 (KLR) where the Supreme Court laid the basic principles for extension of time. They further rely on this Court’s decision in Anti-Counterfeit Authority vs Francis John Wanyange & 4 Others [2021] KECA 381 (KLR) where the court excused an oversight in service of the notice of appeal and extended time to serve the same. 8.The applicants submit that they will suffer prejudice and stand to be condemned unheard despite having an arguable appeal if the application is disallowed as they have fully paid the purchase price for the parcel of land in question. 9.In their response, the respondents in their replying affidavit sworn on 6th March, 2026 by Joseph Munji Mbucho, the 1st applicant, aver that the application by the applicants is an afterthought because the applicants only filed this application after failing to serve the respondents with the purported notice of appeal, and after the respondent having raised this concern in their replying affidavit of 29th October 2023, as filed in Nairobi Civil Application No. E490 of 2023, Margaret Wangui Muhia & Another vs Joseph Munji Mbucho & 2 Others. The respondent further deposed that they will suffer prejudice if the applicants are granted leave to serve the notice of appeal because the applicants have failed to pay Kshs 240,000, the alleged balance of the purchase price as directed by the trial court, and further that the appellants have since applied and obtained a certificate of title for the suit property while the appeal is still pending. The respondents urge that the application be dismissed with costs. 10.In their submissions dated 14th April, 2026, the respondents oppose the application on grounds that the applicants have not demonstrated that they deserve an order of extension. They submit that the applicants have not explained why service was not effected in time and have therefore come to equity with unclean hands. The respondents submit that the application has been filed late after the respondents raised an issue of failure to file or serve the notice of appeal in their replying affidavit filed in Nairobi Civil Application No. E490 of 2023. 11.They further submit that Rule 79 of the Court of appeal Rules, 2022 require that a notice of appeal be served upon all parties affected by the appeal within 7 days of its filing. They submit that if the notice of appeal was lodged on 19th October, 2023, it ought to have been served on the respondents on or before 26th October, 2023, instead, on 30th October,2023, the applicants served the application No. E490 of 2023 in which a copy of the notice of appeal was annexed. They submit that mere attachment of a copy of the notice of appeal to the Civil Application No. E490 of 2023 does not amount to service as envisaged by Rule 79 of the Court of Appeal Rules, 2022. 12.The respondents rely on the case of Salat vs Independent Electoral & Boundaries Commission & 7 Others [2014] KESC 12 [KLR] where it was held that where the law provides for the time within which something ought to be done, if time lapses, one ought to seek extension of time before he can proceed to do that which the law requires. They further rely on Embu Mission Church vs Ndungu & 4 Others [2023] KECA 1639 (KLR), where the court among other things, observed that what an applicant is required to do was explain why it could not act within the law however short the delay. 13.The respondents also submit that the applicants are not coming to court with clean hands since they have already interfered with the ownership by transferring the parcel of land known as L.R. No. Kiganjo/Nembu/2536 from the estate of Teresiah Wanjiku Mbucho (deceased) to themselves pending the hearing and determination of the appeal. They rely on the case of Cove Investments Limited vs Rono & 2 Others__ [2025] KECA 1089 (KLR). 14.The respondents closed their submissions by urging this Court to dismiss the application with costs. 15.This application is governed by Rule 4 of the Court of Appeal Rules which provides that:“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 of a superior court, for the doing of any act authorised 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.” 16.Extension of time is an equitable remedy and not a right. It is therefore discretionary in nature. The court in considering the application therefor is guided by the following factors which are well settled in our jurisprudence; the length of delay, reasons for delay, prejudice to the respondent and merits of the intended appeal. The Supreme Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR summed up the applicable considerations as follows:(a)extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;(b)a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;(c)whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;(d)whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;(e)whether there will be any prejudice suffered by the respondents if the extension is granted;(f)whether the application has been brought without undue delay; and(g)whether in certain cases, like election petitions, public interest should be a consideration for extending time. 17.The principles enunciated are the principles I proceed to apply in the instant case in determining whether the prayers sought by the applicants in their notice of motion dated 3rd February, 2026 should be granted. The applicants’ urge the Court to be granted leave and allow them to serve the notice of appeal out of time or in the alternative that the notice of appeal dated 18th October, 2023 that the applicants prepared and filed on 19th October, 2023 together an application for injunction in Civil Appeal No. E490 of 2023 be deemed as duly served. 18.The first issue of consideration is the length of, and reason for the delay. As to the length of the delay, the judgment was delivered on 16th October, 2023, where upon the applicants had 14 days within which to file the notice of appeal i.e., 30th October, 2023. The applicant filed the notice of appeal on 19th October, 2023 well within the statutory timeline. The issue however is that the applicants did not serve the notice of appeal within the 7 day period provided for under Rule 79 of the Court of Appeal Rules, 2022. Rule 79 (1) provides—“An intended appellant shall, before or within seven days after lodging notice of appeal under rule 77, serve copies of the notice on all persons directly affected by the appeal 19.In their supporting affidavit sworn on 3rd February, 2026 by the applicants’ counsel on record, Ms. Ruth Wanyonyi, she deposed that the delay in serving the notice of appeal was an honest oversight, omission and inadvertent mistake on the part of the applicants’ counsel. That they had filed and served the notice of appeal to the respondents together with their application for injunction in Civil Appeal No. E490 of 2023 on 30th October, 2023 as an annexure and proceeded to file the notice of appeal 5 days later. 20.The respondent in opposing the application have deposed that that the application by the applicants is an afterthought because the applicants only filed this application after failing to serve the respondents with the purported notice of appeal, the respondent having raised this concern in their replying affidavit of 29th October, 2023 and filed in Nairobi Civil Application No. E490 of 2023, Margaret Wangui Muhia & Another vs Joseph Munji Mbucho & 2 Others. The respondents further deposed that having served the notice of appeal as an annexure to the above Application E490 of 2023 does not meet the requirements of Rule 79(1) of this Court’s Rules. That the five days period for filing of an appeal lapsed on 30th October, 2023, and therefore the delay is inordinate. 21.The other criterion is the issue of the chances of the appeal succeeding. Having perused the record of appeal, there clearly are issues that require the Court to pronounce itself. Both parties hold divergent views as to the completion of payment of the purchase price. The applicants have submitted that they have since completed the payment of the purchase price which in their view stand at Kshs 24,000/=. The respondents on the other hand aver that the applicants are coming to court with unclean hands because they are yet to complete payment of the purchase price which in their view, stands at Kshs 240,000/=. Clearly, these are matters that the Court may have to consider at the hearing of the substantive appeal. I therefore find that there is an appeal worth of consideration by the Court on appeal. 22.As to the degree of prejudice, the applicants deposed that the respondents will not suffer any prejudice because the delay is only 5 days and that the respondents were already aware of the impending appeal. The respondents in opposition submits that they will suffer immense prejudice because the applicants are coming to court with unclean hands having already acquired title to the suit property pending the hearing and determination of the appeal. 23.It is therefore my considered view that neither party will suffer prejudice in the instant case because the respondents are still in occupation of the suit property. In any event, what appears to be in contention is the outstanding sum that is due from the agreement of sale of the suit property. In the case of Said vs Shume (2023) KECA 292 (KLR) Odunga, JA stated –“..in considering the exercise of discretion, the court must consider the risk of injustice if the court found in favour of the respondent, than if it determined this application in favour of the applicant and having considered that to opt for the lower than the higher risk of injustice…”In exercising my discretion, I find that neither of the parties will suffer prejudice. 24.For the reasons above, and in the circumstances of this case, I find that a delay of 5 days in not serving the notice of appeal as a single document is not inordinate and is well explained. The explanation given by the applicants is therefore plausible and satisfactory. Further, the fact that the delay was caused by the mistake of the counsel, it will be a travesty of justice to deny the applicants an opportunity to be heard on appeal. The guiding principle as established by courts in Kenya is that a litigant should not suffer for the mistakes or blunders of their advocate. I am aware that mistake of the counsel is not an absolute shield and will not be availed where a party is negligent or is disinterested in participating in their case. In the instant case, I find no such negligence or disinterest. This is purely a procedural blunder by counsel for which I would not visit on the applicants. 25.Consequently, the Notice of Motion dated 3rd February, 2023 is hereby allowed. I order that the notice of appeal dated 18th October, 2023 and attached as an annexure in Nairobi Civil Application No. E490 of 2023 - Margaret Wangui Muhia & Another vs Joseph Munji Mbucho & 2 Others, be served on the respondents as a stand alone document in accordance with Rule 79 of this Court’s Rules from the date of delivery of this Ruling. The costs of this application be in the appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.(DR.) J. O. OKELLO............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.