https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3228

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CASE NO. 210 OF 2017** **ABRAHAM NYONGESA MUMALI……..…………..………. PLAINTIFF** **VERSUS** **MAINA EDWIN MUNYASA ……………………………1ST DEFENDANT** **ALPHONCE MAINA MARINDI…..…………………2ND DEFENDANT** **RULING** **Introduction** 1. Vide a Notice of Motion dated 28th November 2024, the applicant sought the following orders; 2. **Spent** 3. **That the applicant be granted leave to file the notice of appeal out of time.** 4. **That costs hereof be provided for** 5. The application is supported by the affidavit sworn by the applicant dated 28th November 2024. It was the applicant’s case that judgment herein was delivered on 23rd September 2024 and that he was aggrieved therewith and intends to appeal against the same. That the notice of appeal ought to have been filed by 7th October 2024 and that hence the application has been lodged without undue delay. That the court has jurisdiction to extend time. That the intended appeal is not frivolous. That the respondent will not be prejudiced and that the delay was not deliberate but the same was excusable. That it was due to lack of funds that he was not able to file appeal in time. That the suit property belonged to his father and so he has an arguable appeal. 6. The application is opposed. The respondent filed a replying affidavit sworn on 27th January 2025. He stated that no sufficient reasons for delay have been provided. That the delay is inordinate. That lack of funds cannot form the basis for seeking leave to lodge an appeal out of time. That the applicant merely intends to deny him enjoying the fruits of the judgment. That litigation must come to an end. That the applicant has not demonstrated an arguable appeal and has not met the threshold for grant of orders sought. 7. The application was disposed by way of written submissions. On record are submissions by the applicant dated 7th April 2025 which the court has duly considered. **Analysis and determination** 1. The court has carefully considered the application, response thereto as well as submissions. The only issue that arise for the court’s determination is whether the applicant has demonstrated good and sufficient cause to justify extension of time. 2. Section 7 of the Appellate Jurisdiction Act provide for the jurisdiction of this court to extend of time to file notice of appeal as follows; **“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired;** **Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.”** 1. Therefore, this court has discretion to extend time and the same ought to be exercised judiciously. In determining an application to extend time, the court considers inter alia the reason for delay, the period of the delay and the prejudice likely to be suffered by the respondent due to the delay. Besides, if the case touches on public interest, the impact of delay on such public interest also ought to be considered. 2. In the case of **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] e KLR,** the Supreme court had the following to say on extension of time for filing an appeal; 3. **“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.** 4. **A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court** 5. **Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.** 6. **Whether there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.** 7. **Whether there will be any prejudice suffered by the Respondents if the extension is granted.** 8. **Whether the application has been brought without undue delay; and** 9. **Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”** 10. In the instant matter, judgment herein was delivered on 23rd September 2024, therefore the notice of appeal ought to have been filed and served by 7th October 2024. The application herein was filed on 28th November 2024, which is a period of one month and three weeks. The reason given for the delay is that the applicant could not secure funds in time for the lodging of the appeal. I have considered the period of delay in view of the reasons for the delay. I cannot ignore the fact that in our jurisdiction, poverty levels are high and many litigants are not able to access legal services due to financial constraints. It may take some litigants some time to secure the necessary finances to enable them instruct an advocate to mount an appeal. In my view, the delay of less than two months in the face of the reason given is not inordinate. The reason given is an excusable reason. Apart from the 7 weeks delay, I am convinced that the prejudice that may be suffered by the respondent can be atoned by an award of costs. 11. In the premises, I find and hold that the application dated 28th November 2024 is merited and the same is hereby allowed. The applicant is granted leave to file notice of appeal in this matter out of time. Therefore, the applicant shall file and serve notice of appeal in 14 days of this ruling. Since the delay is on the part of the applicant, the costs of this application are hereby awarded to the respondents and shall be borne by the applicant. 12. It is so ordered **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 14TH DAY OF MAY 2026.** **A. NYUKURI** **JUDGE** **In the presence of;** No appearance for the applicant No appearance for the respondents Court Assistant: Delphine