https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1234

Sigei (Suing as the Legal Representative of the Estate of Michael Kipsigei Too - Deceased) v Koskey & 3 others (Civil Application E059 of 2026) [2026] KECA 1234 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1234 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E059 of 2026 MB Kairaria, JA July 3, 2026 Between Sammy Sigei [Suing as the Legal Representative of the Estate of Michael Kipsigei Too - Deceased ] Applicant and Paul Koskey 1st Respondent Bernard Koech 2nd Respondent Hardack Langat 3rd Respondent Julius Arap Sang 4th Respondent (Application for extension of time to file and serve the Notice of appeal out of time in an intended appeal from the ruling of the Environment and Land Court at Nakuru [DR. M. A. Odeny J] dated 4th March, 2026 in ELC Case No. E073 of 2025) Ruling 1.The applicant’s application dated 24th April, 2026 essentially seeks leave to serve the Notice of Appeal dated 10th March, 2026 out of time and that costs of the application abide the result of the intended appeal or be dealt with as the justice of the case shall require. The application is premised on the grounds set on the face of the notice of motion supported by the affidavit of Sammy Sigei sworn on 24th April 2026 and applicant’s written submissions dated 14th May, 2026. 2.In the affidavit in support of the application the applicant states that; he wishes to appeal against the decision of the ELC court made on 4th March,2026, that being dissatisfied with that decision he filed the notice of appeal dated 10th March, 2026 on the same day which was within the time prescribe by the Rules but the ELC registry did not upload the duly signed and lodged copy until 26th March,2026 after the time for service had lapsed and only shared the a copy of the duly lodged copy of the notice on 15th April,2026 following which he instructed his counsel to request for extension of time in which to serve the notice of appeal. He contends that the intended appeal is arguable with high chances of success. 3.The applicant submits that he has met the legal threshold for the grant of extension of time under Rule 4 of the Court of Appeal Rules. The Rule grants the Court unfettered discretion for doing any act required by the Rules on such terms as may be just and the principles governing the exercise of that discretion well settled. Counsel cited the case of Leo Sila Mutiso V Hellen Wangari Mwangi [1999] 2 EA 231 which laid down the parameters that guide the Court in determining an application for extension of time. Those factors include; the length of the delay, the reason for the delay, possibly the chances of the intended appeal succeeding and the degree of prejudice to the applicant if the application is granted. Counsel submitted that the notice of appeal was lodged within time and the present application was made expeditiously and without inordinate delay. It was further submitted that the delay was not intentional but arose from administrative constraints. 4.The Respondents did not file any replying affidavit or submissions in opposition to the application. The factual averments regarding the reason for the delay remain uncontroverted. 5.I have considered the application, the affidavit in support thereof and the submissions of counsel in support of the application. The sole question for determination is whether I should exercise my discretion and allow the applicant to serve the notice of appeal dated 10th March, 2026 out of time. The Rule governing service of notice of appeal is Rule 79 [1] of the Court of Appeal Rules which obligates an intended appellant to serve the notice of appeal under Rule 77 before or within 7 days after lodging the notice of appeal on all persons. From a plain reading of that Rule the applicant’s counsel need not have waited for the duly lodged copy to be availed before serving the notice of appeal dated 10th March 2026 but now that it was not done and considering that the failure to serve within 7 days after lodging the notice is attributed to delay in uploading the duly signed and lodged notice on the Court’s portal ,and further noting that none of the Respondents has said they will be prejudiced if the extension sought is granted I am inclined to grant the Applicant’s request. 6.Accordingly, I find merits in the application dated 24th April, 2026 and the same is hereby allowed. The applicant shall serve the notice of appeal within seven days from the date of this ruling. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JULY, 2026.MURUNGI B. KAIRARIA..........................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR