https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1587

Kuria & 15 others v Njeru (Civil Application E048 of 2026) [2026] KECA 1587 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1587 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E048 of 2026 M Ngugi, JA July 31, 2026 Between Peter Kuria & 15 others Applicant and Zaweria Wangui Njeru Respondent (Being an application for extension of time to lodge and serve a Notice of Appeal against the ruling of the Environment and Land Court at Nyeri (Olola, J.) delivered on 31st July 2025 and for Stay of Execution against the said Ruling and any consequential orders thereto in Nyeri ELC Misc. Application No. E005 of 2024) Ruling 1.The application dated dated 25th May 2026 is an omnibus application, the kind that this Court has decried countless times, but which counsel persist in filing. The application is brought under Articles 10, 27, 40, 47, 50 and 159(2) of the Constitution and rules 5(2)(b), 43, 44, 49(1) and (2) of the Court of Appeal Rules, 2022. It seeks leave to lodge the applicant’s notice of appeal out of time and orders of stay of execution of the ruling dated 31st July 2025 pending hearing and determination of their intended appeal. I note that the applicants have not invoked the jurisdiction of the Court under rule 4 of this Court’s Rules which gives the Court the discretion to extend time for the doing of any act prescribed under the Rules. That notwithstanding, I will consider the application for leave to file the notice of appeal out of time as though it were properly brought under rule 4. The application for stay of execution is outside my remit as a single judge under rule 55(2) of this Court’s Rules. 2.The ruling that the applicants seek to appeal against was delivered by the Environment and Land Court (ELC) (Olola, J.), in Nyeri ELCL MISC No. E004 of 2024 on 31st July 2025. 3.In the affidavit in support of the application sworn by Caroline Wawira, one of the applicants, on 25th May 2026, the applicants aver that in its ruling, the ELC suspended the orders of eviction of the applicants for thirty (30) days, and that a further stay of execution was granted on 28th August 2025. The applicants aver that they were dissatisfied with the ruling and they filed an application dated 25th August seeking orders, among others, for leave for the firm of Karanja Maina & Co. Advocates to come on record for them; that the notice of appeal lodged on 13th August 2025 be deemed as properly filed; and that the court grants the applicants orders of stay of execution of the ruling delivered on 31st July 2025 pending the heating and determination of their application and appeal. The applicants avers that their prayer for leave for the law firm to come on record was allowed on 24th September 2025 by L.G Kimani J.; that notice of appeal had been lodged on 13th August 2025 by the firm of Karanja Maina & Co. Advocates; and that in a ruling dated 13th May 2026, the Court deemed the said notice of appeal as not properly on record. 4.The applicants aver that the court deemed the notice as invalid on the basis that the advocate who lodged it had not sought leave to come on record for the applicants. 5.It is their averment that the firm of Karanja Maina & Co. Advocates served the previous counsel on record, the firm of Muhoho Gichimu & Co. Advocates with the Notice of Change and the Application dated 25th August 2025; that the failure to seek leave was inadvertent and arose from a mistake of counsel and not from any deliberate intention to disregard the law or the authority of the Court; that mistakes of counsel should not be visited upon an innocent litigant; that immediately upon becoming aware of the ruling declaring the notice of appeal as not properly filed, the applicants instructed their advocates to move with speed to rectify the situation; and that the delay, if any, in bringing the present application has not been inordinate and has been sufficiently explained. They aver that unless the Court enlarges time for them to lodge a fresh notice of appeal out of time, they stand to suffer substantial prejudice as their right of appeal shall be defeated. 6.The respondent opposes the application by an affidavit sworn on on 5th June 2026. She avers that the applicants have not shown sufficient reasons for the delay in filing the notice of appeal within the stipulate timelines, and that the explanation advanced for the delay is unacceptable as it is founded on non-compliance with the law, which cannot constitute a valid excuse. She deposes further that the application is solely aimed at forestalling the execution of the order of the ELC and to deny her the benefit of the favourable ruling, and she urges this Court to dismiss the application with costs. 7.The parties have filed submissions dated 5th June 2026 and 19th June 2026 respectively, which I have read and considered in so far as they relate to the limb seeking enlargement of time to file a notice of appeal. 8.The applicants seek to appeal from the ruling of the ELC Court at Nyeri (Olola, J.) dated 31st July 2025 in which the ELC allowed the respondent’s eviction from a property known as Nyeri/Municipality Block 2/1326. I note that following the ruling, the applicants lodged a notice of appeal dated 13th August 2025 through the firm of Karanja Maina & Co. Advocates. Thereafter, they filed an application dated 25th August 2025 seeking, among other orders, leave for the said firm to come on record and an order deeming the notice of appeal properly filed. The Court (L. G. Kimani, J.) allowed the prayer for the firm to come on record on 24th September 2025. The application to deem the notice as properly filed was rejected in the ruling dated 13th May 2026 in which the ELC (Evans Makori, J.) held that the said notice had not been properly filed as counsel had not first obtained leave to come on record. 9.The sole issue for my consideration is whether the applicants have laid a proper basis for the exercise of this Court's discretion under rule 4 of this Court’s Rules to enlarge time for them to lodge their notice of appeal. Rule 4 vests the Court with an unfettered discretion to extend time limited by the Rules. Although the discretion is wide, it must be exercised judiciously. The principles governing the exercise of the Court's discretion under Rule 4 are now well settled- see Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) and Fakir Mohammed v. Joseph Mugambi & 2 others [2005] eKLR (Civil Application No. Nai. 332 of 2004 (Nyr. 32/04)). 10.In this case, the ruling that the applicants seek to appeal against was delivered on 31st July 2025. The firm of Karanja Maina & Co. Advocates lodged a notice of appeal on behalf of the applicants on 13th August 2025, within the period prescribed under rule 77 of this Court’s Rules. However, by the ruling delivered on 13th May 2026, the ELC held that the notice of appeal had not been properly lodged because the firm of advocates that filed it had not first obtained leave to come on record. The applicants filed the present application on 26th May 2026, approximately thirteen days after that ruling. 11.Given the circumstances of this case, I take the view that there has not been inordinate delay in seeking enlargement of time to file the notice of appeal. Contrary to the contention by the respondent, the period of delay cannot be computed from the date of the ruling, the 31st July 2025. The applicants did lodge a notice of appeal within the prescribed timelines. That notice, however, was filed by a firm that was not properly on record as was held in the decision of the ELC dated 13th May 2026. 12.This application was filed less than two weeks after the ELC ruling. That period, I find, cannot be described as inordinate. Further, it is explained by the steps taken by the applicants upon realising that there was non-compliance with the rules regarding change of advocates after judgment. The error by the applicants’ advocates in this case, in my view, should not be visited on the applicants. 13.I am, accordingly, satisfied that the prayer in the application dated 26th May 2026 seeking extension of time to file a notice of appeal from the ruling dated 31st July 2025 is merited, and I hereby allow it. The applicants shall file and serve a Notice of Appeal against the ruling aforesaid within seven (7) dayshereof. 14.The remaining prayer seeking stay of execution of the ruling dated 31st July 2025 shall be placed before the full bench of this court for hearing and determination. 15.I make no order as to costs. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.MUMBI NGUGI................................... JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR