https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1343

Muthanga & another v Iriaini Tea Factory & 4 others (Civil Application E016 of 2026) [2026] KECA 1343 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1343 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E016 of 2026 M Ngugi, JA July 3, 2026 Between Johnstone Muchai Muthanga 1st Applicant Muchaistone Limited 2nd Applicant and Iriaini Tea Factory 1st Respondent Leah Wanjiru Murugi 2nd Respondent Fredrick Munyua Mwaniki 3rd Respondent David Kamau Mwangi Naomi Wanjugu Githui t/a Kamau Githui & Company 4th Respondent Joshua Macharia Kihara t/a Kihara & Associates 5th Respondent (Being an application for extension of time to file and serve a memorandum of appeal and record of appeal out of time from the judgment of the Environment and Land Court at Nyeri (O. Olola, J.) delivered on 19th September 2025 in ELC Case No. 108 of 2013) Ruling 1.By their application dated 25th February 2026, the applicants seek extension of time to file and serve their memorandum of appeal and record of appeal, and that the memorandum of appeal annexed to the application be deemed as properly filed. They also pray that the costs of the application be in the cause. The application is brought under Article 159 of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of this Court’s Rules. 2.The application is based on the grounds on its face and the affidavit in support sworn by the 1st applicant, Johnstone Muchai Muthanga, on 25th February 2026. The grounds for the application are that they filed the notice of appeal within the prescribed time, and that their intended appeal is arguable with overwhelming chances of success; that they have satisfactory reasons for not filing the memorandum and record of appeal within the prescribed time frame; that their application has been made without unreasonable delay by the new advocates seized of the matter; and that the respondents will not suffer any prejudice should the orders sought be granted. 3.In his affidavit, Mr. Muthanga avers that judgment in Nyeri ELC Case No 108 of 2013 between the parties herein was delivered on 19th September 2025 in favour of the 3rd respondent; that they were dissatisfied with the judgment and had, through their then advocates on record, lodged a notice of appeal on 7th October, 2025. They aver that their then advocates did not, however, follow the strict timelines of filling the memorandum and record of appeal within sixty (60) days as· prescribed by the Court of Appeal Rules. The appellants aver that they fell out with their advocates and so they instructed the current advocates to act for them; and that by then, time for filing the memorandum and record of appeal had expired. It is averred that the failure to file the memorandum and record of appeal was due to the failure by the applicants’ advocates to advise them on the timeline for filing the memorandum and record of appeal, and for failing to file the said documents; and that they realised the failure to file the documents in late January upon perusal of the court file. 4.The applicants aver that it is in the interests of substantive justice that they be granted leave to file and serve the memorandum of appeal and record of appeal out of time. 5.The application is opposed by the 4th respondent through a replying affidavit sworn by David Kamau Mwangi on 10th March 2026 on his own behalf and on behalf of Naomi Wanjugu Githui. He deposes that the application is incompetent, bad in law and an abuse of the court process; that the applicants have not served the notice of appeal dated 30th September 2025 upon them; that the notice of appeal was itself filed out of time and without leave of the Court; that the applicants have not served the letter requesting proceedings; and that the applicants are guilty of inordinate and unexplained delay in filing and serving the memorandum of appeal, record of appeal and the present application. 6.The 4th respondent avers that the applicants were not intent on pursuing the appeal and only moved the Court after the 1st respondent taxed its costs at Kshs.936,723/= while the costs of the 3rd and 4th respondents remain pending taxation. It is further averred that no plausible explanation has been offered for the delay; that the intended appeal is an afterthought intended to prolong litigation and defeat the ends of justice, has no good prospects of success and is not arguable; and that the application is a ploy to delay recovery of costs incurred in defending the third-party claim in Nyeri ELC Case No.108 of 2013; and that the applicants have failed to satisfy the conditions for enlargement of time. He accordingly prays that the application be dismissed with costs. 7.The applicants and the 3rd and 4th respondents filed submissions dated 23rd March 2026, 9th April 2026 and 5th June 2026 respectively which I have read and considered. This is an application under rule 4 of this Court’s Rules for extension of time to file and serve a memorandum and record of appeal. The jurisdiction of this Court under rule 4 is discretionary and is exercised on the basis of well-settled principles as enunciated in the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (1999) 2 EA 231 and affirmed by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 8.In considering whether or not to extend time, the Court is required to consider the length of the delay, the reason for the delay, (possibly) the chances of the intended appeal succeeding if the application is granted, and the degree of prejudice to the respondent. See also Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR. 9.In the present case, the judgment that the applicants seek to appeal from was delivered on 19th September 2025. The applicants lodged a notice of appeal dated 30th September 2025 on 7th October 2025. Under rule 77(2), the notice of appeal should have been lodged within 14 days, that is by 3rd October 2025, so it was filed 4 days late. No application has been made for extension of time with respect to the notice of appeal. 10.The present application, dated 25th February 2026, seeks extension of time with respect to the memorandum and record of appeal. There being no valid notice of appeal on record, and the applicants not having sought extension of time with respect thereto, the application is without foundation, and is for dismissal. 11.I have noted, however, the submissions by the 3rd respondent that the application is improper, inept, and an abuse of the court process as the 1st respondent had lodged a notice of appeal dated 1st October 2025 pursuant to rule 77(2) of the Court of Appeal Rules, 2022; that since there was already a notice of appeal filed, the applicants’ notice of appeal lodged on 7th October 2025 was automatically deemed to be a notice of address of service in accordance with rule 82(1); and the applicants ought to lodge a notice of cross appeal within 30 days upon service of the duly filed notice of appeal, memorandum of appeal and record of appeal by the 1st respondent as required by rule 95(1). 12.Unfortunately, the 3rd respondent did not file an affidavit to place the documents alluded to in his submissions on record. Should his submissions be based on the factual position, then he is correct and the present application was unnecessary and falls within the time wasting scenario captured by Wanjiru Karanja JA in Gichoya v Kibata & 2 others (2022) KECA 1432 (KLR) where the Court stated:“I would, however, entreat counsel to familiarise himself with the Rules, because had he complied with former rule 82 of the Court of Appeal Rules 2010, presently rule 84, he would have been covered under the proviso thereto and this application would not have been necessary and the time spent on the application would have been expended towards more beneficial pursuits." 13.Should the position advanced by the 3rd respondent in the submissions aforesaid be correct, then the applicants have engaged the Court in an unnecessary expenditure of time. If not, the applicants are at liberty to seek extension of time to file their notice of appeal and the memorandum and record of appeal thereafter. 14.As matters now stand, the application dated 25th February 2026 is hereby dismissed with costs to the 3rd and 4th respondents. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.MUMBI NGUGI............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR