https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1177

Ngomeni Swimmers Ltd v Khonde & another (Civil Appeal (Application) E001 of 2026) [2026] KECA 1177 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1177 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal (Application) E001 of 2026 SO Okong'o, JA June 19, 2026 Between Ngomeni Swimmers Limited Applicant and Tabu Tuva Khonde 1st Respondent Kahindi Kaingu Ngonda 2nd Respondent (An application for extension of time to file and serve a Notice of Appeal and Record of Appeal out of time in an intended appeal from the Ruling and Orders of the Environment and Land Court at Malindi (E. K. Makori, J.) delivered 15th February 2024 in ELC Case No. 15 of 2010 Environment & Land Case 15 of 2010 ) Ruling 1.What is before me is a Notice of Motion application dated 13th January 2026 brought by the Applicant under, among others, Rule 4 of the Court of Appeal Rules 2022 (Rules) seeking extension of time to file a Notice of Appeal and a Record of Appeal against the ruling and orders of the Environment and Land Court (ELC) at Malindi delivered on 15th February 2024. The application is supported by the affidavit and further affidavit of the Applicant's director, Mario Nuzzo, sworn on 13th January 2026 and 7th March 2026, respectively. The Applicant averred that he was dissatisfied with the said ruling and orders of the ELC and filed Notice of Appeal and Record of Appeal, which were struck out on 24th October 2025 for having been filed out of time; that failure to seek leave before filing the said Notice of Appeal and Record of Appeal resulted from a mistake of its previous advocates; that the intended appeal was arguable and had good prospects of success; that the application was brought without unreasonable delay; and that the Respondents would not suffer any prejudice if the application was allowed. The Applicant further averred that he sought and obtained leave to appeal against the ruling and orders of the ELC, which were issued on a preliminary objection by the Respondents. 2.The application was opposed by the Respondents through a replying affidavit and supplementary affidavit of the 2nd Respondent, sworn on 26th January 2026 and 23rd March 2026, respectively. In the affidavits, the 2nd Respondent averred that the Applicant’s initial Notice and Record of Appeal were struck out for having been filed out of time; that the draft Memorandum of Appeal annexed to the affidavit in support of the application was in stark contrast to the initial Memorandum of Appeal contained in the Record of Appeal, which was struck out, which was a clear evidence of lack of candour as to its grievance against the impugned ruling; and that the Applicant was guilty of laches the impugned ruling having been delivered close to two years prior to the application. The 2nd Respondent further averred that the intended appeal was frivolous in that the impugned ruling was made pursuant to a formal application by the Respondents rather than on a preliminary objection, as the learned Judge had indicated in his ruling; that the Applicant’s reference was properly struck out as it was filed out of time without leave; and that the Applicant did not obtain leave to appeal against the impugned ruling. The 2nd Respondent further averred that granting the orders sought would occasion the Respondents great prejudice. 3.At the hearing of the application, learned counsel, Mr. Nyongesa appeared for the Applicant, while learned counsel, Mr. Sumba appeared for the Respondents. Mr. Nyongesa relied on his written submissions dated 7th March 2026, which he briefly highlighted. He submitted that the application was not brought after an inordinate delay; and that when considering whether the application was brought timeously, time should be reckoned from the date on which the initial Notice and Record of Appeal were struck out, and not from the date on which the impugned ruling was delivered. 4.On the arguability of the intended appeal, he submitted that the learned Judge of the ELC erred by treating the Respondent’s Notice of Motion application as a preliminary objection and determining it summarily; yet the application did not raise a pure point of law. He submitted that in treating the Motion as a preliminary objection, the learned Judge denied the Applicant an opportunity to respond to the factual averments on which the application was based. He submitted that the intended appeal was not frivolous as contended by the Respondents. Regarding the alleged prejudice to the Respondents if the application were allowed, he submitted that prejudice must be real, and not speculative. He submitted that any prejudice to the Respondents could be remedied in costs. He added that the Applicant did not require leave before filing a Notice of Appeal. 5.Mr. Sumba similarly relied on his written submissions dated 25th March 2026, and made a brief highlight. He submitted that the Applicant was guilty of laches and, as such, was not deserving of the discretionary order sought; that the Applicant filed the application 86 days after the striking out of their appeal on 24th October 2025, which was an inordinate delay; that the Applicant’s draft Memorandum of Appeal left no doubt that the intended appeal was frivolous; that the single issue raised in the draft Memorandum of Appeal against the impugned ruling was that the ruling was on the Respondents’ preliminary objection which was wrongly taken as the issues raised for determination required facts to prove; that the Respondents did not raise a preliminary objection before the ELC, but moved the court by a Notice of Motion application dated 28th August 2025 for the striking out of the reference to taxation dated 15th August 2023 that had been filed by the Applicant; that the Applicant filed a replying affidavit in opposition to the application, which the learned Judge considered together with the Applicant's submissions; that there was no merit in the Applicant’s claim that the Respondent’s preliminary objection denied it an opportunity to be heard on the factual issues that were raised in the preliminary objection; and that that was the sole ground the Applicant wished to argue in the intended appeal. He further submitted that the Applicant required leave to appeal, which it did not obtain from the ELC, thereby rendering the intended appeal incompetent. He reiterated that the order sought, if granted, would be prejudicial to the Respondents as they would be subjected to further delay in the enjoyment of the fruits of the judgment in their favour. 6.The application was brought primarily under Rule 4 of the Rules, which provides as follows:“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 a superior court, for the doing of any act authorized or required by the 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.” 7.In the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR, the Supreme Court laid down the following general principles on the exercise of discretion in applications for extension of time:“ 84.From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. 85.……, we derive the following as the under- lying principles that a court should consider in exercise of such discretion: 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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 8.In Fakir Mohammed vs. Joseph Mugambi & 2 others [2005] eKLR (Civil Application No. Nai. 332 of 2004 (Nyr. 32/04), the court stated that:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors.” 9.In Mwangi vs. Kenya Airways Ltd (2003) KRL 486, the court stated that:“Over the years, the Court has set out guidelineson what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1977) (unreported), the Court expressed itself thus:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 10.In Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR), the court stated that:“(12)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.” 11.I have considered the Applicant’s application together with the affidavits filed in support thereof. I have also considered the Respondents’ replying affidavits. Finally, I have considered the parties’ oral and written submissions. From this Court's decisions cited above, it is clear that Rule 4 grants the Court unfettered discretion to grant an extension of time. The discretion must, however, be exercised judiciously. Under Rule 77 of the Rules, the Applicant should have filed a Notice of Appeal against the impugned ruling by 29th February 2024. The Applicant filed the Notice of Appeal and the Record of Appeal out of time without leave of the Court, and they were struck out on 24th October 2025. The Applicant did not move the court immediately for an extension of time after the striking out of its initial Notice and Record of Appeal. It was not until 19th January 2026, 86 days later, that the Applicant brought the present application. 12.It is my finding that the delay of 86 days in filing the present application by the Applicant after the striking out of the Applicant’s initial Notice and Record of Appeal was inordinate. As the Respondents rightly pointed out, no explanation was given for the delay. In light of the parties' dispute history, I agree with the Respondents that the Applicant is guilty of laches. The Applicant has approached a court of equity for a discretionary remedy. Equity aids the vigilant. The Applicant is the opposite of that. It is not entitled to the exercise of this court’s discretion. I also wish to say that I am not persuaded that the intended appeal is arguable. 13.What was before the learned judge of the ELC was the Applicant’s reference to the taxation of the Respondents’ bill of costs. The issue the court was called upon to determine by the Respondents in their application before the ELC, filed in response to the reference, was whether the reference was properly before the court. It was not disputed that the ruling on the taxation by the taxing officer was delivered on 21st June 2023; that the Applicant filed a notice of objection to the taxation on 21st July 2023 outside the 14 days provided in Rule 11(1) of the Advocates Remuneration Order for filing objection to taxation; and that the Applicant did not obtain leave of the ELC under Rule 11(4) of the Advocates Remuneration Order to file the notice of objection out of the prescribed time. In the absence of leave, the notice of objection filed by the Applicant in the ELC was irregular and could not support the reference that was subsequently filed on 15th August 2023, which was struck out by the learned Judge as incompetent. The issue before the ELC was whether the Applicant had complied with the steps and timelines set out in Rule 11 of the Advocate's Remuneration Order when filing its reference. This was an issue of law. On the issue, the Applicant had no answer before the ELC and this Court. I find the intended appeal not arguable. 14.For the foregoing reasons, the Applicant’s Notice of Motion application dated 13th January 2026 has no merit. The same is dismissed with costs to the Respondents. DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF JUNE, 2026.S. O. OKONG’O…………………………..JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR