https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1124

Ngugi v Ogembo (Civil Application E055 of 2026) [2026] KECA 1124 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1124 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E055 of 2026 S ole Kantai, JA June 12, 2026 Between Raphael Mureithi Ngugi Applicant and Samuel Otieno Ogembo Respondent (Being an application for extension of time to file and serve a Notice of Appeal, Memorandum of Appeal and Record of Appeal out of time against the Judgment of the Environment and Land Court at Nairobi (T. Murigi, J.) delivered on 31st October, 2025 in E.L.C.A No. E048 of 2024) Ruling 1.The applicant Raphael Mureithi Ngugi has moved this Court under Articles 48, 50 and 159 (2)(d) of the Constitution of Kenya 2010; Section 3A and 3B of the Appellate Jurisdiction Act; Rules 4 and 77 of the Court of Appeal Rules, 2022 and all other enabling provisions of the law praying that the Court be pleased to issue an order for enlargement/extension of the time for the intended appellant/applicant to lodge and serve Notice of Appeal and the Record of Appeal to this Court; that the Court be pleased to issue an order that the Notice of Appeal and Memorandum of Appeal annexed be deemed as properly filed and served. 2.In grounds in support of the Motion and in a supporting affidavit it is said that the Environment and Land Court (ELC) in ELCA E048 of 2024 delivered a judgment on the 31st October, 2025 dismissing the applicant’s appeal with costs; that the same was delivered via the Judiciary Case Tracking System where the applicant and his Advocates on record were not aware of such delivery of judgment; that the judgment was delivered without notice and in the absence of all parties; that by the time the applicant became aware of the judgment time to lodge an appeal had lapsed. The applicant further says that he did not give instructions on time to lodge an appeal; he is 77 years old and he needed to consult his family as the litigation related to family land. He says further that he and his lawyers became aware of the judgment after being served with the respondent’s bill of costs on 13th November, 2025 which was 14 days after delivery of judgment. The applicant also says that he has been unable to procure the said judgment or proceedings to enable him appeal; he had to organize his finances; that the intended appeal raises cogent and arguable points of law which should be addressed in a second appeal; that the delay in bringing this application is not inordinate. Attached to the affidavit is the judgment of ELC delivered on 31st October, 2025; letter attaching the respondent’s bill of costs; bill of costs dated 11th November, 2025 with taxation notice and a draft Memorandum of Appeal.The Motion is dated 30th January, 2026. 3.In a replying affidavit the respondent Samuel Otieno Ogembo says that the applicant is a vexatious litigant who has mastered the art of clogging the judicial process with a litany of interlocutory applications, he says that the applicant and his lawyers knew of the judgment date as the lawyer was present when the date was given by the Judge; that a bill of costs was served on the applicant’s lawyers on 13th November, 2025; that the intended appeal has no chance of success as it has been precipitated by service of the respondent’s bill of costs and I should dismiss the application.I have seen written submissions by both sides. 4.The applicant relies on the case of Michael Lenkilili vs. Republic [2024] KECA 926 (KLR) where the Court held that a delay of 7 months was not inordinate to support the proposition that delay of about 3 months from 31st October, 2025 to 30th January, 2026 is not inordinate. The applicant submits that where there is no notice for delivery of judgment such delay is reasonable. It is also submitted that the intended appeal is arguable and that the respondent has not demonstrated what prejudice he would suffer if I exercise discretion in favour of the applicant. 5.It is submitted for the respondent that extension of time is an equitable remedy; that the applicant has not demonstrated that he was keen to pursue an appeal; that the applicant’s approach in tracking the judgment was casual. The case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR is cited for the proposition that a plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour.The respondent submits that litigation has been ongoing for 3 years which has exacted emotional, financial, and professional toll on him. 6.The principles that apply in an application for leave to extend time were well set out in the oft –cited case of Fakir Mohamed vs. Joseph Mugambi & 2 Others in Civil Application No. 33 of 2004 as follows:“The exercise of this court’s discretion under Rule 4 has followed a well beaten path since the stricture ‘sufficient reason’ was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Application No. Nai. 255 of 1997 (ur), Mwangi vs. Kenya Airways Limited [2003] KLR 486, Major Joseph Mwereri Igweta vs. Mulika M’Ethare and Attorney General, Civil Application No.Nai 8/2000 (ur) and Murai vs. Wainana (No. 4) [1982] KLR 38.” 7.The applicant tells me that judgment was delivered on 31st October, 2025 through the Judiciary Case Tracking System; that he and his lawyers were not aware that judgment had been delivered and only became aware when they were served with the respondent’s bill of costs on 13th November, 2025. Those facts are contested by the respondent but no material has been availed to me by the respondent to test the veracity of those facts. 8.I am aware that for a number of years now a lot of Court business is conducted virtually or electronically and that technology has its issues where an affected party may not have proper efficient facilities to log on the Court system. There is of course the issue of delay from 13th November, 2025 (when bill of costs was served) and the date of application (30th January, 2026 – about 9 weeks later). The applicant says he is of advanced age, the dispute involves family property and that he was consulting family on the issue of the litigation. I accept that as a reasonable explanation. So there is no inordinate delay and the delay is explained. I know that litigation should come to an end but that must be balanced against a party’s unquestioned right of appeal as here. 9.I allow the application. Let notice of appeal be lodged within fourteen (14) days and record of appeal within thirty (30) days thereafter. Costs of the Motion will be in the appeal. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026S. OLE KANTAI.............................. JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR