Optiven Limited v Langata Community & 14 others (Civil Appeal (Application) E006 of 2026) [2026] KECA 1031 (KLR) (29 May 2026) (Ruling)

Optiven Limited v Langata Community & 14 others (Civil Appeal (Application) E006 of 2026) [2026] KECA 1031 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1031 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E006 of 2026 P Lilan, JA May 29, 2026 Between Optiven Limited Applicant and Langata Community & 14 others & 14 others Respondent (Application for extension of time to file Appeal from the Judgment of the Environment and Land Court at Kajiando (Komingoi, J) delivered on 15th October 2025 in Kajiado ELC No. 8 of 2022) Ruling 1.The Application dated 15th January 2026 brought primarily pursuant to Rule 4 Court of Appeal Rules, 2022, (as well as rules 12, 41 and 43 of the said rules) is seeking extension of time within which to file the Notice of Appeal, Memorandum and Record of appeal. The written submissions relied upon by the applicant focus on the prayer for extension of time (having previously written to the court on 27th April, 2026 signaling abandonment of prayer number 2 for stay), as set out in the notice of motion. It is instructive that the applicant did not submit on prayer number 4 which is seeking to validate the notice of appeal dated 5th November, 2025, the memorandum of appeal dated 28th November 2025 and record of appeal dated 15th December, 2025, all of which were filed on the basis of a belated notice of appeal, hence, out of time and without leave of the court. The shift of focus away from that prayer was the right mitigative step given that this court has previously and consistently emphasized its reluctance to accept documents filed out of time but without the leave of court, where there was an opportunity available to seek leave before going ahead with the belated filings. Accordingly, I take the view that prayer number 4 is deemed abandoned as well. In addition, the applicant prays that costs be provided for. 2.The motion is supported by the affidavit sworn by George K, Wachiuri. The genesis is a suit by the respondents filed against the applicant in the superior court at Kajiado, being ELC No. 8 of 2022, seeking reliefs following what the applicants described as breach of contract; judgment was entered on 15th October 2025 allowing the claim. 3.The applicant was aggrieved by the outcome and instructed Counsel to file an appeal. Subsequently, a Notice of Appeal dated 29th October 2025 was filed on that date, but withdrawn shortly afterwards upon discovery that it had an error on its face. A corrected notice was filed on 5th November 2025, but by then, it was already late by a few days. The record and memorandum of appeal are said to have been filed thereafter. Although these were filed soon enough, they were riding on a belated notice of appeal- an aspect that is evidently alive in the mind of the applicant which must have informed the necessary step of mounting the present application. 4.The application is unopposed. Despite being served with the application and evidence of service being provided to the court, the respondents did not file any response. 5.The task for the court is to determine the question as to whether the Applicant met the prerequisites for granting relief under Rule 4 of the Court of Appeal Rules. I have considered the grounds in support of the application as set out on the notice of motion, the averments contained in the supporting affidavit and the written submissions on record. Rule 4 of the Court of Appeal Rules, 2022 gives the court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular action prescribed under the rules, but such discretion whether to extend time or not, must be exercised judiciously as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi - Civil Application No. Nai 255/97 (unreported). In that case, the court pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013) eKLR]. 6.In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR M’Inoti, J. had this to say concerning Rule 4:“A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 7.It is often stated by this court in applications such as this one that the actual exercise of discretion also depends on circumstances of each case as was stated in Mongira & Another vs Makori & Another [2005] eKLR. 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 [2014] eKLR 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.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.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be a consideration for extension of time.One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie, the intended Appeal/Appeal has chances of success or is a mere frivolity. 8.The Applicant has in the supporting affidavit, sated the reason for the delay in filing the notice of appeal - that the initial notice with erroneous citation of the heading of the case before the superior court was filed in the registry on 29th October 2025, well within time, and once that error was realized, the said notice was withdrawn and another filed promptly on 5th November 2025. Applicant further avers that although the timelines had passed for this attempt to remedy the situation, the applicant was prompt filing the correct notice. It is submitted that taking into consideration the error, the delay was only 5 days out of time. 9.This leads to the next inevitable question for consideration in such applications - whether there has been inordinate delay. In arguing that the delay is not inordinate, the applicant draws from the case of Kibuku v Kibuku (Civil Appeal Application E707 of 2024) [2026] KECA 7 (KLR), where the court allowed the application for extension holding that the delay was minimal and was not attributed to neglect and/or inaction, and not inordinate. I similarly find and hold that the delay was not inordinate. 10.On the issue as to whether or not the Intended Appeal has chances of success, that is not the role of a single judge to determine the merits or otherwise of the Appeal. This Court has held in the case of Athuman Nasura Juma v Afwa Mohammed Ramadhan CA 227/15:“…this court has to be careful to ensure that the intended Appeal has merit or not is not an issue to be determined with finality by a single Judge”.I must bear this in mind whilst determining the present application. I need not say more on that aspect, the better. 11.Certainly, the period of 5 days would not be described as inordinately long. The application before this court was filed slightly over 3 months after the date of the impugned judgment, a period that cannot be said to be inordinate in the circumstances, noting that the applicant evinced intent to appeal and took steps in good time, save for the mis-step associated with an error on the notice of appeal which would appear to have been inadvertent and excusable. I find that the explanation given is satisfactory; the applicant has demonstrated sufficient reasons to warrant the orders sought, and I hold that the application is merited and is allowed. The applicant shall file and serve fresh Notice of Appeal as well as Memorandum and Record of Appeal, and serve the same within fourteen (14) days from the date hereof. Costs of the application shall be in the cause. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026PAUL LILAN.................................JUDGE OF APPEALI certify that this is a true copy of the original SignedDeputy Registrar