https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1405

Onduru v Owour & 2 others (Civil Application E035 of 2026) [2026] KECA 1405 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1405 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E035 of 2026 EC Mwita, JA July 10, 2026 Between Pamela Akoth Onduru Applicant and Musa Owour Oduma 1st Respondent Tabitha Juma Owour 2nd Respondent Land Registrar Rachuonyo South 3rd Respondent (Being an application for extension of time to file a Notice of Appeal out of time from the judgment and decree of the Environment and Land Court of Kenya at Homa Bay (Nyagaka, J) dated 20th January 2026 in ELCA No. E014 of 2025) Ruling 1.Pamela Akoth Onduru, (the applicant), herein has vide a motion on notice application dated 19th February 2026 brought pursuant to the provisions of sections 3A and 3B of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022 and all other enabling provisions of the law, invoked the jurisdiction of this Court sitting as a Single Judge, seeking an order extending and or enlarging time for filing a notice of appeal out of time against the judgment of the Environment and Land Court at Homa Bay, (Nyagaka,J) (the ELC) dated and delivered on 20th January 2026. 2.The motion is premised on the grounds on its face, affidavits sworn by the applicant on 19th February 2026 and 19th March 2026. The applicant deposes that vide a judgment delivered on 20th January 2026, the ELC allowed the appeal and set aside the judgment of the Principal Magistrate which had been given in the applicant’s favour; that the judgment was uploaded on the CTS on 27th January 2026 and her advocate filed a notice of appeal dated 6th February 2026 but used the date of publication of the judgment on the CTS instead of the date the judgment was delivered in calculating time thus, erroneously thought that the 14 days for filing the notice of appeal were to expire on 9th February 2026 instead of 2nd February 2026. Upon noticing the error, the applicant has now come to this Court seeking to regularize that error hence the present application. 3.The motion is opposed through a replying affidavit sworn by Moses Owour Oduma, the 1st respondent, on 13th March 2026. The gist of the response is that the judgment was delivered on 20th January 2026 in the presence of counsel for the parties; that on the same day the 1st respondent’s counsel wrote a letter to the Deputy Registrar of the ELC bespeaking copies of the proceedings and judgment and copied the letter to the applicant’s counsel and therefore there could not have been doubt or misdirection on the date the judgment was delivered. According to the 1st respondent, even after the judgment was uploaded on the CTS on 27th February 2026, the applicant still had seven days to file the notice of appeal. 4.The application has been canvassed through written submissions only without appearance of counsel and or the parties. Counsel for the applicant has filed submissions written submissions dated 19th March 20226 while submissions by counsel for the 1st and 2nd respondent are dated 31st March 2026. The 3rd 4th and 5th respondents have not taken part in this application. 5.Counsel for the applicant has relied on Salat v Independent Electoral and Boundaries Commission [2014] KESC 12 (KLR) to urge this Court to extend time for filing the notice of appeal, explaining that the reason for failing to file the notice of appeal on time was due to confusing the two dates, namely; the date of delivery of the judgment and the date the judgment was uploaded on the CTS. 6.Counsel for the 1st and 2nd respondents, however, argues that the delay has not been satisfactorily explained and relies on Salat v Independent Electoral and Boundaries Commission & 7 others (supra); Nyongesa v Lukuyu [2025] KECA 10449KLR) and Marwa v Chacha [2025] KECA 2151(KLR) on the principles a court must consider before granting extension of time. 7.I have carefully considered the motion, the grounds in support thereof, the supporting affidavits, the 1st and 2nd respondents’ replying affidavit, rival submissions made on behalf of the parties, the decisions cited and the law. 8.Under Rule 4 of the Court of Appeal Rules, extension of time is a discretionary power exercisable on well settled principles. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 this Court stated as follows:“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; third, (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.”(See also Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR). 9.The principles the Court should consider, include the length of the delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent and the conduct of the parties. 10.In the present application as regards the length of the delay, the judgment was delivered on 20th January 2026. The notice of appeal was filed on 6th February 2026 signifying the intension to appeal against the judgment, a delay of about 2 days which in the circumstances of this case I do not consider to be inordinate. 11.Turning to the reasons proferred for the delay, it has been contended that counsel erroneously used the date the judgment was uploaded on the CTS in calculating the time within which to file a notice of appeal instead of the date the judgment was delivered and as a result, fell short of time by two days. 12.I consider the reason given for the delay to be plausible and excusable human error given the circumstances of this case.I am of the considered opinion, therefore, that the delay herein has sufficiently been explained to the satisfaction of this Court and, in any case, it is not inordinate. As to whether the intended appeal is arguable or not, I cannot make a determination on this issue sitting as a Single Judge and I will therefore not delve into it. 13.On prejudice, it has not been demonstrated to the satisfaction of this Court, the prejudice that the respondents will suffer if the motion is allowed. On the other hand, if the motion is disallowed, the applicant will have been completely been shut out from the seat of justice. 14.Taking into account the totality of all the circumstances of this case, I am of the considered view, that the applicant has satisfied the principles for consideration in exercising my unfettered discretion pursuant to rule 4 of the Rules of this Court to extend time. 15.Accordingly, the applicant’s motion dated 19th February February 2026, is merited and is hereby allowed as prayed. The applicant shall file and serve the Notice of Appeal within 7 from the date of this ruling, failure to which these orders shall stand vacated. 16.Costs of the motion shall abide by the outcome of the intended appeal. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.E. C. MWITAJUDGE OF APPEALI certify that this is a true copy of original.SignedDeputy Registrar