https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1027

Muriithi v Mukoma (Civil Appeal (Application) E029 of 2026) [2026] KECA 1027 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1027 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E029 of 2026 Katwa Kigen, JA May 29, 2026 Between Pheris Wanjira Muriithi Applicant and Jecinta Wangechi Mukoma Respondent (Being an application for leave to file and serve a Notice of Appeal and Record of Appeal out of time against the Judgment of the Environment and Land Court at Nyeri (L. G. Kimani, J.) delivered on 27th November, 2025 in ELCA Cause No. E037 of 2022) Ruling 1.The application before me is dated 14th march, 2026 and is brought under rule 4 and 43 of the Court of Appeal Rules, 2022, sections 3A and 3B of the Appellate Jurisdiction Act, cap 9 Laws of Kenya, and all other enabling provisions of the law. The applicant, Pheris Wanjira Muriithi, seeks leave to file and serve a notice of appeal and record of appeal out of time against the judgment of Lady Justice LG Kimani delivered on 27th November, 2025 in Nyeri ELCA No. E037 of 2022. The application is supported by the affidavit of the applicant sworn on 14th March, 2026. 2.In her supporting affidavit she contends that the judgment in ELCA No. E037 of 2022 was delivered on 27th November, 2025 in the absence of the applicant. That at all material times, the applicant was represented by the firm of Waruingi & Co. Advocates. Her counsel did not notify her of the date of delivery or the outcome of the judgment. The applicant only became aware of the judgment on 12th February, 2026 when she personally visited the court registry to make inquiries. By then, the statutory period of fourteen days for lodging a notice of appeal had lapsed on 10th December, 2025. Upon learning of the judgment, she immediately instructed her present advocates, Wambui Mwai & Associates, who advised her on the necessity of seeking leave to file an appeal out of time. She has since moved the court without undue delay. 3.In her supporting affidavit, the applicant depones that she was dissatisfied with the judgment and intends to lodge an appeal. She avers that the delay was not deliberate but occasioned by lack of communication from her former counsel. She annexes a copy of the impugned judgment marked “PWM 1” and a draft memorandum of appeal marked “PWM 2,” asserting that her intended appeal raises arguable issues with high chances of success. She further states that the respondent will suffer no prejudice if the orders sought are granted, whereas she stands to suffer grave prejudice, including denial of her constitutional right of appeal and proprietary rights over her property, if leave is not granted. It is urged that unless the court intervenes, the applicant will be shut out from the appellate process. The application is opposed by the respondent vide the Replying Affidavit sworn on 23rd March, 2026 by Eric Thige Muchiri, an advocate of the High Court of Kenya and partner in the firm of Muri Mwaniki Thige & Kageni LLP, duly authorized to act for the respondent. The respondent states that this Honourable Court lacks jurisdiction to entertain the application, as the applicant has not filed a valid Notice of Appeal in Nyeri ELCA No. E037 of 2022 and therefore has not properly invoked the appellate jurisdiction. In the absence of such notice, the application is said to be incompetent and an abuse of process, warranting striking out. 4.The respondent further contends that the applicant has been guilty of inordinate and unexplained delay, having filed the present application nearly three months after delivery of judgment on 27th November, 2025, wherein Lady Justice LG Kimani dismissed the applicant’s appeal with costs. It is deponed that the applicant was at all material times represented by Waruingi & Co. Advocates, who were fully seized of the matter, filed submissions, and were aware of the date fixed for judgment. The applicant has not demonstrated any effort to follow up with her counsel, nor exhibited correspondence to show diligence. The attempt to blame former counsel for failure to notify her of the judgment is termed unsubstantiated, as no affidavit has been sworn by the said advocate to confirm the allegation. The respondent emphasizes that litigants have a duty to follow up on their cases and cannot shift blame entirely to advocates. 5.It is further averred that the application is an afterthought, brought only after the taxation of the respondent’s party and party bill of costs, whose ruling was delivered on 25th February, 2026, and is aimed at frustrating the respondent from enjoying the fruits of her judgment. Annexed to the affidavit is a copy of the taxation ruling marked “E1,” showing that costs were taxed at Kshs. 120,980/= in favour of the respondent. 6.On the merits, the respondent asserts that the intended appeal is not arguable, as it is premised on a claim over land parcel LR Nyeri/Uasonyiro/901 allegedly acquired through an oral contract, which is unenforceable under the Law of Contract Act and the Land Registration Act. The respondent maintains that allowing the application would occasion undue prejudice, prolong litigation contrary to the principle of finality, and unjustly defeat the respondent’s taxed costs. The affidavit concludes with a prayer that the application be dismissed with costs. 7.The appellant, in his written submissions dated 1st April, 2026, submits that he has met all the requirements for the grant of leave to file and serve a notice of appeal and record of appeal out of time. He relies on judicial authorities, including Hamam Singh & Others v Mistri [1971] EA 122, to argue that mistakes of a legal advisor may constitute sufficient cause provided there is no inordinate delay. 8.On the arguability of the intended appeal, the appellant contends that the matter raises serious triable issues, particularly challenging the trial court’s finding of fraud despite the existence of Land Control Board consent under the Land Control Act, cap 302. He further argues that no evidence was adduced to prove forgery of the respondent’s mother’s thumbprints on the transfer and consent forms, hence fraud could not be inferred in the transfer of Land Parcel No. Nyeri/Uasonyiro/901. On prejudice, the appellant submits that the respondent will suffer none if the orders are granted, whereas refusal would deny him the constitutional right of appeal. On conduct, it is emphasized that the appellant acted in good faith and with diligence, moving to court promptly upon discovering that judgment had been delivered in her absence. 9.Finally, on the interest of justice, counsel urges that the court is enjoined to administer justice without undue regard to procedural technicalities, and that the appellant should be granted an opportunity to ventilate her appeal. In conclusion, the appellant prays that leave be granted to file and serve both the notice of appeal and the record of appeal out of time, with costs to abide the appeal. 10.The respondent, in further opposition to the application, submits vide his written submissions dated 10th April, 2026 that the application is incompetent and without merit. He argues that this honourable court lacks jurisdiction since the applicant has not lodged a valid notice of appeal in the superior court as required under rule 77(1) and (2) of the Court of Appeal Rules, 2022. Reliance is placed on Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] KESC 12 (KLR) and Amollo & 6 Others vs. Chege & Another [2023] KECA 543 (KLR), which affirm that jurisdiction is only invoked upon the filing of a notice of appeal. 11.The respondent further submits that the applicant failed to serve a letter bespeaking proceedings, meaning the timelines for filing both the notice of appeal and the record of appeal have lapsed. On this point, reliance is placed on Benedict Mwazighe & Another vs. Gasper Walele & 2 Others [2011] eKLR. It is contended that even if the orders sought were granted, they would be futile since the court cannot extend time for filing the record of appeal in the absence of compliance with the Rules. Without prejudice to the jurisdictional objection, the respondent argues that the applicant has not met the principles for extension of time as set out in Leo Sila Mutiso vs. Hellen Wangari Mwangi [1999] 2 EA 231 and reaffirmed in Raphael Musila Mutiso & 3 Others vs. Joseph Ndava Nthuka & Another [2019] KECA 463 (KLR). The attempt to blame former counsel is termed unsubstantiated, as no evidence of follow-up or correspondence has been produced. Visiting the court registry instead of contacting counsel is described as irregular and indicative of indolence. The respondent also notes that the application was filed only after taxation of his party and party bill of costs on 25th February, 2026, making it an afterthought intended to frustrate his enjoyment of the judgment 12.Finally, the respondent contends that the intended appeal is not arguable, being premised on an oral contract for the sale of land parcel LR Nyeri/Uasonyiro/901, which is unenforceable under the Law of Contract Act and the Land Registration Act. He stresses that no serious question of law arises and the principle of finality of litigation should prevail. In conclusion, the respondent prays that the application be dismissed with costs, as it is incompetent, lacks merit, and is calculated to delay his enjoyment of the judgment. 13.The application before me is dated 14th March, 2026 and is brought under rule 4 of the Court of Appeal Rules, 2022, together with sections 3A and 3B of the Appellate Jurisdiction Act, cap 9 Laws of Kenya. The applicant, Pheris Wanjira Muriithi, seeks leave to file and serve a notice of appeal and record of appeal out of time against the judgment of Lady Justice LG Kimani delivered on 27th November, 2025 in Nyeri ELCA No. E037 of 2022. 14.The jurisdiction of this court to entertain such an application is expressly conferred by rule 4 of the Court of Appeal Rules, 2022, which empowers a single judge to extend time for the doing of any act authorized or required by the Rules. The Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) clarified that extension of time is not a right of a party but an equitable remedy available at the discretion of the court, to be granted only upon demonstration of sufficient cause. The court emphasized that the discretion must be exercised judiciously, guided by established principles. 15.The principles governing extension of time were restated in Leo Sila Mutiso vs. Hellen Wangari Mwangi (supra), where the Court held that the exercise of discretion under rule 4 of the Court of Appeal Rules must be guided by four key considerations: the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is allowed. These principles remain the touchstone in determining whether sufficient cause has been demonstrated to warrant extension of time. 16.Applying these principles, the applicant explains that judgment was delivered in her absence on 27th November, 2025, and she only became aware of it on 12th February, 2026 upon visiting the court registry. By then, the statutory period of fourteen days for lodging a notice of appeal had lapsed. She immediately instructed her current advocates, who advised her to seek leave. She maintains that the delay was not deliberate but occasioned by lack of communication from her former counsel, and that her intended appeal raises arguable issues. 17.The respondent, on the other hand, opposes the application, arguing that the delay of nearly three months is inordinate and unexplained, that the attempt to blame former counsel is unsubstantiated, and that the application was filed only after taxation of costs, making it an afterthought. He further contends that the intended appeal is not arguable, being premised on an oral contract for the sale of land parcel LR Nyeri/Uasonyiro/901, which is unenforceable under the Law of Contract Act and the Land Registration Act. 18.Having considered the rival positions, I am satisfied that this court has jurisdiction under rule 4 to entertain the application. The central question is whether the applicant has laid a sufficient basis to warrant exercise of discretion. While the delay is not negligible, it is explained by the applicant’s lack of notification from her former counsel and her eventual prompt action upon discovering the judgment. The intended appeal raises issues touching on fraud, validity of land transactions, and Land Control Board consent, which are not frivolous. On prejudice, the respondent has a taxed costs award, but that alone does not outweigh the applicant’s constitutional right of appeal. In any event the question of extension of time has no relation to taxation of costs. 19.In the circumstances, I am persuaded that the applicant has demonstrated sufficient cause to warrant extension of time. Accordingly, I allow the application dated 14th March, 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. 20.Considering the lack of material to show active diligence to know status of the case from the previous advocate, I hold that the applicant is in part culpable for the situation and the need for this application. I am in the situation constrained to order that the applicant pays costs for this application. DATED AND DELIVERED AT NYERI ON THIS 29TH DAY OF MAY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR