https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1425

Muhula v sale & 3 others (Civil Application E052 of 2026) [2026] KECA 1425 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1425 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E052 of 2026 B Ongaya, JA July 10, 2026 Between Raymond Oduor Muhula Applicant and Peres Atieno Sule 1st Respondent Selinа Аоko Otieno 2nd Respondent Kevin Keega Otieno 3rd Respondent Mary Akoth Otieno 4th Respondent (Being an application seeking leave to file and serve the Record of Appeal out of time, against the Ruling of the Environment & Land Court at Kisumu (Asati, J.) dated 7th December, 2023 in ELC Case No. 38 of 2017 (O.S) Environment and Land Case 38 of 2017 ) Ruling 1.The applicant filed the notice of motion dated 27th February, 2026 under rule 4 of the Court of Appeal Rules, seeking the following orders that:1.…(Spent)2.The appellant be granted leave to file and serve his record of appeal out of time.3.Upon grant of prayer 2 above, the appellant's record of appeal filed on 20.02.2026 be deemed to have been properly filed and served.4.The costs of this application be in the cause. 2.The application is premised on grounds set out therein and supported by the applicant’s affidavit sworn on 27th February, 2026. The applicant asserted that he filed a notice of appeal on 14th December, 2023 against a ruling of the Environment and Land Court (ELC) delivered on 7th December, 2023. That he also wrote to the registry requesting copies of typed proceedings with respect to the said Ruling. That while a partial batch of the proceedings was provided on 27th February, 2025, the final documents were not confirmed ready for collection until 10th February, 2026. The applicant explained that his failure to file the record of appeal within statutory timelines was unintentional and was caused by the court’s delay in providing certified copies of the proceedings and the ruling. He noted that a certificate of delay had been prepared to effect that 784 days had elapsed between the request for proceedings on 14th December, 2023 and the collection of the documents on 10th February, 2026. He contended that the appeal would likely be struck out if the instant application were not granted. 3.The respondents filed a replying affidavit sworn on their behalf by their advocate, Juliet Akinyi Dima, on 3rd March, 2026. Ms. Dima averred that the instant application is a gross abuse of the court process and does not meet the threshold for the exercise of this court’s discretion. That the applicant was under a duty to regularize his position once he became aware of the delay, but chose to remain indolent. She contended that the instant application is merely a reactionary measure prompted by the respondents’ own motion to strike out the notice of appeal in Civil Application No. E165 of 2025 in the Court of Appeal at Kisumu. She challenged the applicant’s certificate of delay, labelling it an afterthought and contending that it fails to explain the applicant’s prior inaction. 4.Ms. Dima further argued that by filing a record without leave and without a certificate at the time of filing, the applicant had bypassed the mandatory procedures of this court. That the subsequent issuance of a certificate in 2026 does not cure the initial illegality. She urged that the application be dismissed with costs in the interest of justice. 5.This application was listed before me on 30th June, 2026 as a chamber matter in the absence of the parties or their advocates, and is to be disposed of by way of written submissions. The hearing notice was served on the parties’ counsel on 8th June 2026. In addition, the 1st respondent’s advocate swore an affidavit of service on 22nd April, 2026 to the effect that the 2nd to 4th respondents’ advocates on record were served through their official email addresses. The applicant and the 1st respondent filed their written submissions. 6.The applicant filed submissions dated 7th April, 2026, asserting that there is no maximum or minimum period of delay set out under the law, save that the delay must be reasonable and plausible (see Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR). He noted that the notice of appeal was filed within time and that the record of appeal is what needed to be admitted out of time. That the reason for the delay is plausible and has been sufficiently explained. 7.The applicant further submitted that the appeal is arguable because it centers on whether the 1st respondent properly served him the originating summons. That this issue is pertinent because it affects his constitutional right to a fair hearing and is capable of altering the trial court’s Judgment. He argued that the 1st respondent will not suffer prejudice if the application is allowed, as she currently resides on and farms the suit parcel. That conversely, the applicant would be prejudiced if denied the opportunity to defend his case, as judgment was entered against him without a hearing. The applicant urged that he had met the threshold under rule 4 of this Court’s Rules and hence the application should be allowed. 8.The 1st respondent filed submissions dated 20th April, 2026. She argued that the applicant failed to demonstrate diligence and provided no evidence on reminders or registry correspondence to explain the delay. That further, the applicant’s reliance on a certificate of delay is inconclusive because it does not account for the period between the certification of proceedings in 2025 and the filing of the current motion. She maintained that granting the extension would reward inaction and undermine the court's procedural rules. That the applicant had not demonstrated any prejudice that cannot be adequately remedied by costs or compliance with the procedural framework governing appeals. 9.I have considered the parties’ arguments and submissions. This court has unfettered discretion under rule 4 of the Court of Appeal Rules to consider an application for extension of time. The locus classicus case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 laid down the parameters to be considered in an application for extension of time 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; thirdly (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.” 10.On the issue of the reason for delay it is not in dispute that on 27th February, 2025 the ELC furnished the applicant with a copy of typed proceedings for the period 6th August, 2015 to 14th February, 2023 in exclusion of the proceedings relating the impugned ruling delivered on 7th December, 2023. Further, counsel for the applicant received an email on 10th February, 2026 stating that proceedings and ruling were ready for collection. In view of the email, there is no reason to doubt that the applicant’s counsel had made a follow up for the further proceedings through physical visits at the registry and which amounted to appropriate step taken to obtain the missing certified proceedings and the impugned ruling of 7th December, 2023. In the circumstances I am satisfied that the reason of the delay was not deliberate but was occasioned by the in the court providing the applicant the complete proceedings including the impugned ruling. The certificate of delay was dated 10th February, 2026 and the present application dated 27th February, 2026 and the applicant is found to have moved promptly to file the application within 7 days. The delay is excusable in the circumstances of the flow of the steps taken for the applicant. 11.The applicant has raised an arguable point of appeal going to the right to be heard and being whether the originating summons was served so as to enable him to enter appearance. It is also shown that prejudice to the 1st respondent is mitigated because the 1st respondent currently resides on and farms the suit parcel. 12.In the premises the application is allowed, time is hereby extended and the applicant's record of appeal filed on 20th February, 2026 is deemed to have been properly filed and served. The costs of the application to abide the outcome of the appeal. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.B. ONGAYA.......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR