https://new.kenyalaw.org/akn/ke/judgment/keca/2026/916

National Land Commission v Ali & another (Civil Application E098 of 2025) [2026] KECA 916 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 916 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E098 of 2025 KI Laibuta, JA May 15, 2026 Between National Land Commission Applicant and Karim Mohammed Hassan Ali 1st Respondent Kenya National Highways Authority 2nd Respondent (Being an application for extension of time to serve the Notice of Appeal and the letter requesting for certified copies of proceedings out of time from the Judgment and Decree of the Environment and Land Court of Mombasa (Stephen Kibunja, J) delivered on 4th December 2024 in E.L.C Case No. 180 of 2021) Ruling 1.Before me is a Notice of Motion dated 6th November 2025 in which the applicant (the National Land Commission) seeks extension of time pursuant to rule 4 of the Court of Appeal Rules to serve the Notice of Appeal and the letter requesting for certified copies of the proceedings out of time. 2.The applicant’s Motion is anchored on the grounds that, after delivery of the impugned Judgment, the applicant’s Director Legal Affairs and Dispute Resolution instructed Mr. Solomom Mbuthia to file and serve a Notice of Appeal, request for certified copies of proceedings and serve the respondents therewith, and file the Record of Appeal; that, upon internal review of the matters handled by the said advocate, the Director noticed that the Notice of Appeal and the letter requesting for certified copies of the proceedings were not served upon the Respondents; that the applicant has since instructed its current advocates to proceed with service; that failure to effect service was an honest and inadvertent mistake; that the applicant has an arguable appeal with high chances of success; that the decretal sum is colossal and in excess of two billion shillings; and that no prejudice will be suffered by the Respondents in the event that the orders sought herein are granted. 3.The Motion is supported by the annexed affidavit of Brian Ikol, its Director Legal Affairs and Dispute Resolution, sworn on 6th November 2025 essentially deposing to the grounds aforesaid, but which we need not replicate here. 4.In support of the applicant’s Motion, learned counsel, M/s. Mukele, Moni & Company, filed written submissions and a list and bundle of authorities dated 11th March 2026 citing the cases of Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA 231 on the guiding principles for grant of orders to extend time under rule 4 of this Court’s Rules; Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, highlighting the principle that the law does not set any minimum or maximum period of delay to warrant grant of orders to extend time; and Anti-Counterfeit Authority v Francis John Wanyange & 4 Others [2021] KECA 381 (KLR), submitting that their Notice was filed on time but was not served within seven days and that, in that case, the Court found that the delay was not inordinate, and that it was well explained. Accordingly, counsel requested that, in the interest of justice and fairness, the Motion be allowed as prayed. 5.Notably, none of the respondents filed an affidavit in reply to the applicant’s Motion. However, learned counsel for the 2nd respondent, M/s. Sagana, Biriq & Muganda Advocates LLP, filed written submissions and a digest of authorities in support of the applicant’s Motion. Cousnel cited 6 judicial authorities, including Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet (supra); and Francis Mwanza Mulwa v Kanji Vagjani & 2 Others [2018] KEHC 2145 (KLR), submitting that the power to extend time under rule 4 is an exercise of discretion; Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya [2022] KESC 16 (KLR) where the Supreme Court held that, in determining whether there was inordinate delay, the focus should not be on the length of the delay per ce, but also on the justification and reason, which must be rational and plausible. Counsel asked me to allow the application to enable the Court to determine the issues arising from the impugned judgement. 6.On their part, learned counsel for the 1st respondent, Ms. Okoth, made oral submissions contending that the delay of almost one year was not explained; that they were served in July 2025;and that the applicants have failed to satisfy the requirements under rule 84 of this Court’s Rules to file the record of appeal within 60 days after lodging the Notice of Appeal. 7.It is noteworthy that the applicant’s Notice of Appeal dated 9th December 2024 and the letter requesting for a certified copies of the proceedings dated 9th December 2024, and copied to the Respondents, were served on them as confirmed by an email dated 11th July 2025 from the applicant’s current advocates effecting service of the Notice and letter aforesaid upon the Respondents. 8.The 13 needlessly argumentative grounds on which the intended appeal is founded are set out in the Memorandum of Appeal dated 11th July 2025 essentially faulting the learned Judge for, inter alia: failing to consider and determine the 2nd respondent’s preliminary objection; failing to find that the 1st respondent’s suit was statute-barred; failing to find that the said suit was pre-mature and fell within the jurisdiction of the Land Acquisition Tribunal; disregarding the evidence before him as well as the provisions of the Land Assessment of Just Compensation Rules, 1017; awarding interest on the amount warded in compensation; and for failing to uphold the doctrine of stare decisis. 9.Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to “… 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 authorized or required by these Rules, whether before or after the doing of the act …,” on such terms as it thinks just. 10.The four basic factors to be considered in exercise of the Court’s discretion in determination of applications under rule 4 were enunciated in Leo Sila Mutiso vs. Helen Wangari Mwangi [1999] 2 EA p231. In determining whether to extend time, the Court takes into account: (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding if the application is granted; and (iv) the degree of prejudice to the respondent if the application is granted. In principle, the discretion is unfettered, and there is no limit to the number of factors the court would consider so long as they are relevant. 11.In the same vein, the Court of Appeal in Fakir Mohammed vs. Joseph Mugambi and two others [2005] eKLR considered additional factors that may be considered in appropriate cases, namely: the effect of delay on public administration; the importance of compliance with time limits; the resources of the parties; and whether the matter raises issues of public importance, all of which the Court viewed as relevant, but not exhaustive. 12.The Applicant’s Motion for extension of time to file an appeal turns on the four basic factors enunciated in Leo Sila Mutiso vs. Helen Wangari Mwangi (supra) as well as on the element of public importance as recognized in Fakir Mohammed vs. Joseph Mugambi and two others (supra). 13.With regard to the merit of the appeal, it is sufficient for the Applicant to demonstrate that it has an arguable appeal with the likelihood of success. In my considered view, the grounds set out in the applicant’s memorandum of appeal are by no means frivolous. Indeed, they are demonstrably arguable. 14.With regard to the period of delay, the Court of Appeal in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR observed that “… the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favourably exercisable.” 15.To my mind, the 7 months’ delay in serving the duly lodged Notice of Appeal and the letter requesting for certified copies of the proceedings was satisfactorily explained in the supporting affidavit of Brian Ikol. In my view, the reasons given are satisfactory, plausible and deserving of my discretionary favour, not to mention the public importance of the matters in controversy. 16.In view of the foregoing, I form the view that the orders sought to extend time to serve the Notice of Appeal and the letter requesting for proceedings are merited and. Accordingly, the Notice of Motion dated 11th July 2025 is hereby allowed with costs to the 1st respondent. Orders Accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.DR. K. I. LAIBUTA CArb, FCIArb............................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR