https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1337

Maringa (The Administrator of the Estate of Maringa Kibisho) v Maina & 4 others (Civil Application E022 of 2026) [2026] KECA 1337 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1337 (KLR) Republic of Kenya In the Court of Appeal at Meru Civil Application E022 of 2026 HI Ong'udi, JA July 3, 2026 Between Njuki Maringa (The Administrator of the Estate of Maringa Kibisho) Applicant and James Mwangi Maina 1st Respondent John Muiru Mwangi 2nd Respondent Stanley Kimani Mwangi 3rd Respondent Solomon Maina Mwangi 4th Respondent The Land Registrar Of Mbeere District 5th Respondent (Being an application for leave to file an appeal out of time against the Judgment of the Environment and Land Court at Embu (K. Bor, J.) dated 18th February 2026 in ELC Suit No. E012 of 2020) Ruling 1.The applicant herein, moved the Court through a notice of motion dated 30th April 2026 seeking an enlargement of time to file the Notice of Appeal lodged on 27th April 2026 and served on 28th April 2026. The application is premised on the grounds on its face and the applicant’s affidavit sworn on even date. 2.The applicant deponed that he personally attended court on 18th December 2025 when the judgment in Embu ELC Suit No. E012 of 2020 was to be delivered. He was however informed that the said judgment had been rescheduled to 25th February 2026 for delivery. He further deponed that upon attending court on the rescheduled date, he discovered that a new judge was presiding and so he waited until the end but his matter was not called. He added that subsequent inquiries with the court assistant and a check of the Court Tracking System (CTS) revealed the judgment had actually been delivered on 18th February 2026. 3.He deponed that his attempts to peruse the file at the registry were initially frustrated because the file had not been transmitted back from Bungoma, where the trial judge had been transferred. That it was not until 2nd April 2026 when he was able to access the physical file and applied for certified copies of proceedings. Thereafter, he visited his previous counsel to provide instructions for an appeal but he was not prepared to take such instructions. He therefore moved swiftly to engage his current counsel, who came on record under a Certificate of Urgency on 21st April 2026 and filed a Notice of Appeal. 4.He further averred that he could not have filed the appeal without first perusing the judgment to understand the specific findings he was aggrieved by. He added that the intended appeal is highly arguable and has overwhelming chances of success. Furthermore, that he currently resides on the subject land and is at risk of great loss as there were plans to execute the decree. He concluded by averring that the mistakes of his previous counsel should not be visited upon him to deprive him of his right to appeal. 5.The 1st to 4th respondents filed a replying affidavit sworn by the 1st respondent on 7th May 2026 opposing the application. He averred that the applicant’s application should be disallowed as it was brought after inordinate delay without providing satisfactory reasons to the Court. He further averred that the Embu Environment & Land Court sent emails and called the parties' respective counsel to inform them that the judgment would be delivered on 18th February 2026. Additionally, that the judgment was uploaded to the e-filing portal well before the decree was issued. 6.He averred that the applicant was stirred into action only upon the commencement of the execution process and land subdivision in late March 2026. Further, that the said subdivision took place in the presence of the applicant and the Police from Siakago Police Station, Furthermore, that the applicant’s claim that the court file was unavailable until 2nd April 2026 was an outright lie as their counsel successfully applied for and received a court decree on 11th March, 2026. He added that the judgment was available via the e-filing system by 25th February 2026, yet the applicant still failed to lodge a Notice of Appeal within the mandatory 14 day window. 7.The 1st respondent averred that granting the requested relief would cause them immense pain, suffering and prejudice since the subdivision of the property had been completed and the new title numbers were being processed. He concluded by averring that the intended appeal was frivolous and lacked any chance of success. He added that the issue of the limitation of actions which the applicant intends to raise on appeal, was already argued in a preliminary objection and dismissed by the trial court on 15th February 2022. He urged the Court to dismiss the application with costs to allow him to enjoy the fruits of his judgment during his lifetime . 8.The applicant filed a further affidavit sworn on 24th May 2026 admitting that the impugned judgment was indeed uploaded on 11th March 2026 and the decree was equally issued on the same day. He deponed that subject to that he was prevented from perusing or approving the draft decree as provided by law, thereby denying him the right to exercise his right of appeal before execution commenced. He denied the respondents’ claim that the file was in court in early March 2026 The rest of the averments were a reiteration of the supporting affidavit. 9.When the application was placed before me for hearing, learned counsel Mr. Muia Mwanzia appeared for the applicant while learned counsel M/s Osiemo Emily appeared for the 1st to 4th respondents. Both parties highlighted their submissions in plenary. 10.The applicant’s submissions are dated 25th May 2026 and were filed by the firm of Muia Mwanzia & Company Advocates. Learned counsel cited the decision in David Pius Mugambi -vs- KCB & Another eKLR, which adopted the Supreme Court’s criteria from Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others eKLR. He submitted that they had to satisfy the seven salient issues laid out in the said case which include; extension of time is a discretionary equitable remedy, the burden of proof lies with the applicant, the court must consider the matter on a case-by-case basis, there must be a reasonable explanation for the delay, the respondents must not suffer prejudice, the application must be brought without undue delay and where applicable, public interest must be considered. 11.To justify the delay, learned counsel asserted that the applicant was initially informed the judgment would be delivered on 25th February 2026, but it was actually delivered on 118th February 2026 without his knowledge. Furthermore, that the full text of the judgment was not uploaded until 11th March 2026 and the physical file remained unavailable at the Registry until 2nd April 2025. He cited the case of Margaret Gacigi Gecaga v Udi Mareka Gecaga & Another [2021] KECA 553 (KLR) where this Court agreed with the applicant therein that indeed a perusal of the judgment was necessary so that the applicant could decide which part of the decision he would appeal against. 12.Learned counsel argued that the delay of approximately two and a half months was not inordinate and that the application was brought without unreasonable delay given the circumstances. Furthermore, that the 1st to 4th respondents will suffer no prejudice, as the subject matter involves immobile land and they will maintain their right to defend the appeal. He submitted that the intended appeal is highly arguable and possesses overwhelming chances of success. That the same questions whether the trial court erroneously allowed a statute-barred claim and whether a breach of contract can legally metamorphose into a constructive trust where none existed. 13.Counsel further submitted that the applicant’s right to fair hearing should only be denied in the most clear and exceptional cases. He placed reliance on the case of Katampoi v Nyambura & Another Civil Appeal (Application) No. E374 of 2021 [2021] KECA 332 (KLR) where the Court cited with approval the case of Richard Nchapi Leiyagu vs IEBC & 2 Others Civil Appeal No. 18 of 2013. He contended that the applicant was prevented from reaching the court file by circumstances beyond his control and that the court should exercise proportionality to ensure the applicant is not shut out. 14.The 1st to 4th respondents’ submissions are dated 22nd May 2026 and were filed by the firm of Lumumba & Ayieko Advocates. Learned counsel contended that the applicant had failed to meet the established legal threshold for such a discretionary remedy and the application was built upon demonstrably false claims regarding the delay. He placed reliance on the governing principles set forth by the Supreme Court decision in Nicholas Kiptoo Arap Salat v IEBC & 7 Others [2014] eKLR, which held that an extension of time is an equitable remedy available only to deserving parties who provide a satisfactory explanation for delay. He argued that the applicant’s claims of ignorance of the judgment and the alleged unavailability of the court file are contradicted by the record. That the same shows his former counsel was present during the judgment delivery and that a formal decree was extracted as early as 11th March 2026. 15.Learned counsel further contended that the applicant’s affidavits contradicted the dates on which the file was allegedly perused. Furthermore, he simultaneously acknowledged that the decree was issued on 11th March 2026. He cited the decision in Motorways Kenya Limited v Kenya Engineering Workers Union [2018] KECA 327 (KLR), and submitted that lack of candour irritates a court of equity. 16.It was asserted that the applicant did not provide letters, emails or attendance records demonstrating any diligent attempts to access the file or follow up with his advocate between 25th February 2026 and 30th April 2026. Therefore, mere assertions would not suffice. He placed reliance on the decisions in Ikumbi Estate Investment Limited v John Mbogo Nyambura [2019] KECA 205 (KLR) and Alex Njue Kithangari & 4 Others v Benson Gichohi Mutahi [2024] KESC 72, where the Court of Appeal and Supreme Court, respectively, dismissed similar applications for want of proof of efforts made. 17.Learned counsel while relying on the case of In The Estate of Stephen Nzomo Mwatu (Deceased) (Civil Application E454 of 2021) [2022] KECA 659 (KLR) (8th July 2022) (Ruling) submitted that filing a Notice of Appeal does not require the physical file or full proceedings. He further submitted that execution had already commenced, with six acres excised from the suit property. Therefore, granting extension at this stage would subject the 1st respondent who is elderly, to further protracted litigation while they are already in possession of the fruits of a judgment obtained after rigorous trial. He added that the intended appeal lacks merit, as it attempts to collaterally resurrect limitation points already overruled by the trial court in 2022. He urged the court to dismiss the application with costs. 18.I have considered the pleadings and the submissions of the applicant and the 1st to 4th respondents. The main issue for determination in this application is whether the applicant has satisfied the conditions for the exercise of the discretionary jurisdiction under Rule 4 of the Court of Appeal Rules, 2022 to extend time. 19.The Supreme Court has settled principles to guide in exercise of discretion to extend time. The case of Nicholas Kiptoo Korir Arap Salat vs IEBC (supra) sets down these principles as follows:i.Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.ii.A party who seeks extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis. Page 4 of 7.iv.Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court. v. Whether there will be any prejudice suffered by the Respondent if extension is granted.v.Whether the application has been brought without undue delay.vi.Whether in certain cases public interest should be a consideration for extension of time. 20.In Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] eKLR this Court held as follows:“The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance…” 21.In view of the above, it follows that the questions to be answered in this matter are whether the applicant has satisfactorily explained the delay in filing the Notice of Appeal and whether the respondents will suffer any prejudice in the event leave to appeal out of time is granted. 22.The impugned judgment was delivered on 18th February 2026 hence the period for filing the notice of appeal lapsed on or about 4th March 2026. The period of delay therefore is approximately 1 month and 23 days. The applicant argued that the delay in filing the Notice of Appeal was neither intentional nor deliberate, but was occasioned by a lack of information regarding the change in the judgment delivery date and a lack of communication from his former counsel. 23.He further argued that it was not until 2nd April 2026, when he finally found the file, perused the judgment and applied for certified copies of the proceedings. Thereafter, he visited his previous counsel who was not prepared to take instructions for the appeal. He therefore moved swiftly to engage his current counsel, who came on record under a certificate of urgency on 21st April 2026 and filed a Notice of Appeal. He contended that the intended appeal is highly arguable and has overwhelming chances of success. 24.The 1st to 4th respondents, on the other hand, opposed the application, and argued that the applicant had failed to meet the established legal threshold for such a discretionary remedy and the application was built upon demonstrably false claims regarding the delay. They further argued that the applicant did not provide any proof of any diligent attempts to access the file or follow up with his advocate between 25th February 2026 and 30th April 2026. Furthermore, that execution had already commenced, with six acres excised from the suit property. Thus, the intended appeal lacks merit as it attempts to collaterally resurrect limitation points already overruled by the superior Court in 2022. 25.I have considered the rival positions by the parties. The applicant has given the reason for the delay in lodging the appeal in time, as lack of notification of the judgment delivery date and his eventual prompt action to lodge the Notice of Appeal upon discovering the same had been delivered. In my considered view, the period of delay is not inordinate, and the reason given for the delay is plausible. Further, no prejudice shall be occasioned to the 1st to 4th respondents as they will have their day in court on appeal. In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, this Court held as follows:“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.” 26.I note that the 1st to 4th respondents alluded to the execution process having begun but the evidence adduced is not sufficient as no registration of the said sub-divisions has taken place yet. Moreover, looking at the grounds of appeal, I do not think the intended appeal is frivolous and in the event the appeal fails, the 1st to 4th respondents will no doubt have recourse for the legal costs that will have been incurred against the applicant. 27.In the circumstances, I am persuaded that the applicant has demonstrated sufficient cause to warrant extension of time to file his appeal. Accordingly, I allow the application dated 30th April, 2026. The applicant is granted leave to file and serve the notice of appeal and record of appeal out of time within thirty (30) days from the date hereof. 28.Costs shall abide the outcome of the appeal. 29.Orders accordingly. DATED AND DELIVERED AT MERU THIS 3RD DAY OF JULY, 2026.H. I. ONG’UDI.............................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR