https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1260

Kairu (Sued as the legal representative of Jane Njambi Kairu alias Jane Njambi alias Njambi Kairu - Deceased) v Kuria & 5 others (Civil Application E164 of 2026) [2026] KECA 1260 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1260 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E164 of 2026 AO Muchelule, JA July 3, 2026 Between Peter Nyaga Kairu (sued as the legal representative of Jane Njambi Kairu alias Jane Njambi Alias Njambi Kairu - Deceased) Applicant and Daniel Gitau Kuria 1st Respondent Smart City Developers (K) Limited 2nd Respondent John Ngugi Kuria 3rd Respondent Teresia Wanjiku Wainaina 4th Respondent Land Registrar Ruiru 5th Respondent Attorney General of Kenya 6th Respondent (Being an application for extension of time to file and serve the memorandum and record of appeal from the ruling of the Environment and Land Court of Kenya at Nairobi (J. Onyango, J. dated 22nd January 2026 in ELC Case No. E016 of 2021) Ruling 1.Notably, in Nairobi Succession Cause No. 921 of 2011, a grant of letters of administration in respect of the estate of the late Jane Njambi Kairu was issued to the applicant by Muchelule, J, (as he then was) on 28th August 2015. Subsequently, a certificate of confirmation of grant was issued by Muigai, J. on 6th March 2017. The present application arises from a ruling of the Environment and Land Court at Nairobi (Onyango, J). 2.The applicant, Peter Nyaga Kairu, is aggrieved by the ruling delivered by Onyango, J. on 22nd January 2026. He contends that although he sought to file the notice of appeal and memorandum of appeal on 23rd February 2026, the Judiciary’s e-filing system rejected the filing because the record of appeal had not been attached. Upon receiving the rejection notice, he promptly prepared the record of appeal and re-filed the complete appeal documents on 27th February 2026. According to the applicant, the resultant delay of four (4) days was minimal, adequately explained, and occasioned solely by technical challenges. Consequently, he moved this Court under Rule 4 of the Court of Appeal Rules, 2022 seeking leave to file the memorandum and record of appeal out of time and for the documents already filed to be deemed as duly filed. He urged the Court to exercise its discretion in the interests of justice, arguing that the delay was neither deliberate nor inordinate. 3.In his supporting affidavit, the applicant deponed that Jane Njambi Kairu alias Jane Njambi died on 27th July 2003. In Milimani High Court Succession Cause No. 921 of 2011, Samuel Wainaina Muiruri was appointed administrator of her estate. Following Samuel Wainaina Muiruri’s death, the applicant was appointed administrator and a certificate of confirmation of grant was issued on 6th March 2017. Thereafter, pursuant to objection proceedings commenced by Teresia Wanjiku Wainaina, the 4th respondent, seeking revocation of the grant, the matter was referred to mediation on 21st June 2019. The mediation culminated in a settlement agreement dated 24th July 2019, which compromised the objection proceedings. Under that agreement, ownership of the disputed properties, including the suit property, was acknowledged as belonging to the late husband of the 4th respondent. The agreement was adopted as an order of the court on 15th October 2019, thereby paving the way for the distribution of the estate. 4.Subsequently, the 1st, 2nd and 3rd respondents instituted Thika ELC Case No. E016 of 2021 against the 4th respondent seeking injunctive relief in respect of land parcel Ruiru/Ruiru East Block 2/4835. In response, the applicant applied to be struck out from those proceedings on the basis that his role as administrator had been discharged pursuant to the mediation settlement and that the 4th respondent was the only proper party to the suit. In the impugned ruling, Onyango, J. dismissed the applicant’s application and directed that the respondents’ application be set down for hearing. The applicant maintained that the intended appeal was arguable, as demonstrated by the draft memorandum of appeal annexed to the application. He further deponed that a notice of appeal dated 28th January 2026 had been filed in the superior court and served upon the respondents on 23rd February 2026. 5.The application is opposed through grounds of opposition dated 22nd March 2026. The 1st, 2nd and 3rd respondents contend that the applicant failed to lodge the notice of appeal within the prescribed fourteen (14) days from the date of the impugned ruling. They maintain that the notice of appeal was only filed on 23rd February 2026, approximately nineteen (19) days outside the prescribed period. In their view, the delay is inordinate and unexplained, rendering the present application incompetent for want of a valid notice of appeal. 6.Rule 4 of the Court of Appeal Rules, 2022 vests this Court with unfettered discretion to extend time for the doing of any act required by the Rules. That discretion, however, must be exercised judiciously. In Stanley Kehore Mwangi & 2 Others v Kenyamwi Trading Company Ltd [2015] eKLR, this Court stated:“The principles guiding the Court on an application for extension of time premised upon Rule 4 of the Rules are well settled and there are several authorities on it. The principles are to the effect that the power of the Court in deciding such an application are discretionary and unfettered. It is, therefore, upon an applicant under this Rule to explain to the satisfaction of the Court that he is entitled to the discretion to be exercised in his favour.” 7.The impugned ruling was delivered on 22nd January 2026, while the present application was filed on 3rd March 2026. The applicant attributed the delay in filing the memorandum and record of appeal to difficulties encountered with the e-filing system. He explained that his attempted filing on 23rd February 2026 was rejected because the record of appeal had not been attached. According to the applicant, once notified of the rejection, he filed the complete documents on 27th February 2026. He therefore argued that the four-day delay between 23rd and 27th February 2026 was neither inordinate nor prejudicial and had been satisfactorily explained. 8.However, the record reveals that the annexed notice of appeal is undated. The copies served upon M/s Millimo Muthomi & Co. Advocates and the Honourable Attorney General bear stamps indicating receipt on 23rd February 2026. The 1st, 2nd and 3rd respondents maintain that both the filing and service of the notice of appeal occurred on that date. The applicant has not offered any explanation for the failure to file and serve the notice of appeal within the prescribed statutory period. Those averments by the respondents remain uncontroverted. Indeed, the applicant’s explanation is confined to the four-day period between 23rd and 27th February 2026. No explanation has been provided for the delay of approximately nineteen (19) days between the delivery of the impugned ruling and the filing of the notice of appeal. 9.For the Court to exercise its discretion under Rule 4, the applicant must satisfactorily account for the delay before the Court can consider other relevant factors, including the arguability of the intended appeal. Having failed to satisfactorily explain the delay in filing the notice of appeal, the applicant has not met the threshold for the exercise of this Court’s discretion. In the circumstances, it is unnecessary to consider the arguability of the intended appeal. 10.Accordingly, the Court declines to exercise its discretion in favour of the applicant. The application lacks merit and is hereby dismissed. The applicant shall bear the costs of the application. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026A.O. MUCHELULE....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed Deputy Registrar