https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1280

Matolo v Deputy County Commissioner, Makueni & 5 others (Civil Application E484 of 2024) [2026] KECA 1280 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1280 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E484 of 2024 SG Kairu, JA July 3, 2026 Between Robert Muli Matolo Applicant and The Deputy County Commissioner, Makueni 1st Respondent Director of Land Adjudication & Settlement Makueni 2nd Respondent The Land Registrar, Makueni 3rd Respondent The Hon Attorney General 4th Respondent Peter Nzesya Maithya 5th Respondent Robert Muthiani Vuli 6th Respondent (Being an application for enlargement of time to file an appeal from the Judgment of the Environment and Land Court of Kenya at Makueni (T. Murigi, J.) dated 6th March 2024 in ELC JR No. E021 of 2022 Environment and Land Judicial Review Case E021 of 2022 ) Ruling 1.In his application dated 18th September 2024, the applicant Robert Muli Matolo seeks an order for extension of time to file and serve the notice, memorandum and record of appeal against the judgment of the Environment and Land Court (ELC)(T.Murigi,J) in Makueni ELC Judicial Review No. E021 of 2022 delivered on 6th March 2024. In that judgment, the ELC dismissed his application to quash the decision of the 1st respondent given on 5th December 2022 upholding the 5th respondent’s ownership of a property known as Title Number Makueni/Kivani/1000. 2.Based on the grounds appearing on the face of the application and in his supporting affidavit, the applicant asserts that his advocate was not informed of the date of delivery of the judgment by the ELC; that there was further delay occasioned by the staff of the ELC court registry in furnishing the applicant with a certified copy of the judgment; and that due to those reasons, his advocate was unable to file the notice of appeal within 14 days; and that the delay is not intentional or inordinate. It is his case that he stands to lose his property rights; that his appeal has high chances of success; and that there is a risk of execution for costs. 3.During the hearing of the application on 11th March 2026, learned counsel for the applicant was not present, despite having been served with notice of hearing, but had filed written submissions dated 24th January 2025 through the firm of Kithuka & Nafula Advocates. Learned counsel Mr. Peter Kuria appeared for the 1st to 4th respondents and relied on written submissions dated 15th October 2024 in opposition to the application. There was no appearance for the the 5th and 6th respondents, but they had filed written submissions dated 24th January 2025 through the firm of Manthi Masika & Company Advocates. 4.The respondents urge, in opposing the application that the delay involved is not explained; is inordinate and unreasonable; that the intended appeal has no chance of success; that the matter has been adjudicated upon in many other suits including Nairobi ELC Case No. 599 of 2012, Makueni ELC OS No. 5 of 2019, Makueni ELC Case No. 51 of 2017, Machakos ELC Misc. Application No. 193 of 2012 and Civil Appeal No. 422 of 2018 (2024) KECA 1425 (KLR); that in any event the judgment of the ELC has since been executed and the title to the suit property has already been issued to the 5th respondent, who has since transferred the same to the 6th respondent. 5.I have considered the application, the responses, and the rival submissions. Although the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time, that discretion should be exercised judiciously. In Salat vs. Independent Electoral and Boundaries Commission & 7 others (Application No. 16 of 2014) [2014] KESC 12 (KLR) the Supreme Court of Kenya pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; and that delay should be explained to the satisfaction of the court. Other considerations include whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay. Public interest is also a relevant consideration. 6.Earlier in the case of Fakir Mohamed vs. Joseph Mugambi & 2 Others (Civil Application No. Nai. 332 of 2004) KECA 340 (KLR) Waki, JA stated that:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “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, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of 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 factor.” 7.What then is the explanation given by the applicant in this case? As already indicated, the judgment of the ELC sought to be challenged was delivered on 6th March 2024. The notice of appeal should therefore have been filed by 20th March 2024 at the latest. The present application is not made until about six months later on 18th September 2024. The explanation given is that notice of delivery of judgment was not given. One would have expected the advocate for the applicant to support this claim by an affidavit. Neither is there mention when the applicant became aware of the judgment. There is also the claim the registry staff of the ELC delayed in supplying the certified copy of the judgment. Quite apart from the fact that a certified copy of the judgment was not required to enable the applicant file a notice of appeal, there is no evidence of any application having been made to the ELC for the supply of the proceedings or the judgment. The inference based on the material before the Court is that the applicant appears to have been jolted to activity when taxation for costs awarded against him by the ELC was imminent. 8.In my view, the inactivity on the part of the applicant for six months is not satisfactorily explained. I find no merit in the application. It is accordingly dismissed with costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.S. GATEMBU KAIRU, FCIArb, CArb.……………………………….JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.