https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1298

Mwethera & another v Gitunga & another (Civil Application E040 of 2026) [2026] KECA 1298 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1298 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E040 of 2026 Katwa Kigen, JA July 3, 2026 Between Eunice Wambui Mwethera 1st Applicant Robert Muriuki Mwethera 2nd Applicant and Jackson Maina Gitunga 1st Respondent Joseph Maina Njecho 2nd Respondent (Being an application for leave to file a Notice of Appeal and Memorandum of Appeal out of time against the Judgment of the High Court of Kenya at Nyeri (A. Mshila, J., delivered on 2nd April, 2020 in H.C. Succession Cause No. 969 of 2011, Consolidated with Succession Cause No. 406 of 1994) Ruling 1.The application before me is one dated 6th May, 2026. It is brought under Rule 4 of the Court of Appeal Rules. The applicant seeks in the main that the time for filing the Notice of Appeal and thereafter the Memorandum of Appeal be extended, and that the costs of the application abide by the result of the intended appeal. 2.The same is predicated on the grounds appearing on the face of the motion and is further supported by the affidavit of Eunice Wambui Mwethera, sworn on 6th May, 2026. To wit, judgment in Nyeri High Court Succession Cause No. 969 of 2011 was delivered on 2nd April 2020. On 7th April, 2020, a Notice of Appeal was duly drawn. The applicant believed that the said notice had been filed, particularly as this was during the COVID period. However, upon inquiry at the Court of Appeal Registry on 17th April, 2026, she was informed that the Notice of Appeal had not been received. 3.It is her case that she is not to blame for the delay, as she honestly believed her advocates had filed the Notice of Appeal, and that thereafter the Memorandum of Appeal would follow. She avers that, notwithstanding the lapse of time, the estate has not been transmitted since no party has taken action following the judgment. She is desirous of pursuing the appeal, and contends that no party will suffer prejudice if the application for extension of time is allowed. 4.The application is not opposed despite evidence of service. 5.The application is further supported by the applicants’ submissions dated 4th June, 2026, which essentially reiterate the averments contained in the grounds of the motion and the supporting affidavit of Eunice Wambui Mwethera, sworn on 6th May, 2026. In those submissions, the applicants maintain their position without introducing any new matters beyond what has already been captured 6.Even though the application is not opposed, I am under a duty to determine it on its merits as the discretion under Rule 4 must be exercised judiciously and not as a matter of course. 7.Rule 4 vests the Court with unfettered discretion to extend time, but such discretion must be exercised judicially and upon sufficient cause being shown. The principles guiding the exercise of this discretion were set out in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231, and have been consistently applied: the length of delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent. The Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2015] KESC 31 emphasised that extension of time is not a right but an equitable remedy available only where a satisfactory explanation is tendered. 8.In the present case, the delay is nearly six years. The 6-year period as a stand-alone comes out as gross, inordinate, and incurable, even with whatever amount of explanation and reason. By way of explanation, an effort is made to blame the advocate then on record. The applicant was represented by counsel at trial, and a Notice of Appeal was allegedly drawn dated 7th April, 2020. No efforts of follow-up with the advocate are manifested, by mail, visits or otherwise, by the litigant as the owner of the case. There is nothing in relation to the advocate’s handling of the matter that has been availed. In whatever event, as set out above it is unlikely that any explanation in correlation to the advocate would help the gross and inordinate 6-year delay. No credible evidence has been placed before the Court to demonstrate that the said notice was ever lodged with the Registry. There is no receipt, email, or acknowledgement to confirm filing. The explanation advanced that the applicant believed her advocate had filed the notice during the COVID period remains unsubstantiated. Indeed, the annexed Notice of Appeal may as well have been drawn contemporaneously with this application. No explanation is rendered on the Status of the request for proceedings, the proceedings themselves, the court file and the exhibits. In the 6 years, all these could have been discarded, or archived, or acutely atrophied. The court is obligated to give effect to the policy of ending litigation, and extending time herein would be contrary to this objective. It is arguably irresponsible for me to extend time in the face of all these blights. 9.A litigant cannot be seen to only follow up on her case after six years. The delay is inordinate, and no reasonable explanation has been attempted to account for it. This Court has consistently held that indolence and lack of diligence disentitle an applicant to the Court’s discretion (Fakir Mohammed vs. Joseph Mugambi & 2 Others [2005] eKLR; and Mwangi vs. Kenya Airways Ltd [2003] eKLR). 10.Accordingly, I find that no sufficient cause has been demonstrated to warrant the exercise of discretion under Rule 4.In the situation, the application dated 6th May, 2026 is hereby dismissed with costs. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.KATWA KIGEN K. J................................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar