Thomas Kiplagat Bett v Hasham Lalji Properties Limited & 3 others

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: MUMBI NGUGI, JA. (IN CHAMBERS)) CIVIL APPLICATION NO. E621 OF 2021** **BETWEEN** **THOMAS KIPLAGAT BETT APPLICANT** **AND** **HASHAM LALJI PROPERTIES LIMITED …… 1ST RESPONDENT SIGILANI LIMITED ………………………… 2ND RESPONDENT ISMAIL HASHAM LALJI …………………… 3RD RESPONDENT LAPIKEYET TRUST (KENYA) LIMITED ……… 4TH RESPONDENT** *(Being an application for extension of time to file a notice and record of appeal from the judgment of the Environment and Land Court at Nairobi (S. Okong’o J.) dated 29th November 2019* *in* ***ELC Case No. 2234 of 2001)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **RULING** 1. In the application dated 5th November 2021, the applicant, **Thomas Kiplagat Bett**, seeks extension of time to lodge and serve the notice of appeal dated 16th January 2020 and the memorandum and record of appeal filed on 26th October 2021. He further seeks orders that the notice of appeal dated 16th January 2020 and **Civil Appeal No. COACA/E621/2021** filed on 26th October 2021 be deemed as duly filed and served. The application is expressed to be brought under rule 4, (b) (sic) and rule 20 of the Rules of this Court. 2. The application is based on the grounds set out on its face and is supported by an affidavit sworn by the applicant on 5th November 2021 in which the applicant reiterates the grounds forming the basis of his application. It is his contention that the delay in filing and serving the notice of appeal and the appeal was inadvertent and excusable, for various reasons, *inter alia*: that he did not get notice of the delivery of the judgment and only learnt of it after the time for filing the notice of appeal and the appeal had already lapsed; that there was further delay as he did not get the actual written judgment and proceedings so as to decide whether to appeal or not; that time was also lost as he was studying the judgment and taking legal advice to determine if to appeal; and that there was further delay as he was unwell and could not be reached sooner, which worsened the situation. 3. The applicant states further that he filed and served the notice of appeal and the main appeal as soon as he was able; and that he has annexed to his application various documents including the notice of appeal and record of appeal and medical documents showing that he was unwell. He asserts that he has an arguable appeal and sets out various grounds on which he intends to appeal, including failure by the trial court to appreciate that he acquired a legal, legitimate and *bona fide* title, ownership and possession of the suit property, L.R No. 209/4360/56; and for failing to make a finding that the sale and transfer of the suit property was indeed effected by the 1st respondent’s own directors whose actions are binding. 1. The applicant asserts that the respondents will not suffer any prejudice if time is extended; that the 1st respondent remains in occupation of the property; that the Court has jurisdiction; and that the application is deserving of the Court’s discretion. 2. The applicant has filed submissions dated 20th August 2025 in support of his application. There is no response to the application. 3. I have considered the application, the affidavit in support and the applicant’s submissions. Rule 4 of this Court’s Rules vests in a single judge of the Court the discretion to extend time for the doing of any act prescribed under the Rules. The discretion is unfettered, but must be exercised judiciously**,** not arbitrarily or whimsically. Further, extension of time is not a right of a party, but an equitable indulgence of the Court which is only accorded to a deserving applicant. In [***Salat v***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng%402014-07-04)[***Independent Electoral and Boundaries Commission & 7***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng%402014-07-04)[***others*** [2014] KESC 12 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng%402014-07-04) the Supreme Court held that: ***“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.”*** 1. In considering whether or not to exercise discretion in favour of a party, the Court is required to consider the length of the delay, the reasons for the delay, (possibly) the chances of the appeal succeeding should the application be allowed, and the prejudice to the respondent should the application be allowed- see ***Leo Sila Mutiso v. Helen Wangari Mwangi* [1999] 2 EA 231 (CA)**. and ***Fakir Mohammed v Joseph Mugambi and two others*** [2005] eKLR. 2. In the present case, the judgment sought to be appealed from was delivered on 29th November 2019. The applicant was required to lodge a notice of appeal within 14 days of that date, but did not. He avers that he lodged a notice of appeal on 16th January 2020, which was about one month outside the 14-day window prescribed by the Rules. Although the applicant avers that he has annexed a copy of the notice of appeal to his affidavit, I was unable to find such a document on the record. 1. The applicant further avers that he filed a record of appeal on 26th October 2021, roughly two years after the judgment. Again, there is no document or evidence indicating that the record of appeal was filed. Putting that aside for the moment, it is incontestable that a delay of a month and more before filing a notice of appeal, and two years before filing a record of appeal, all in contravention of rules 77 and 84 of the Rules of this Court, is inordinate. 2. The applicant explains the delay by averments that neither he nor his counsel were aware of the judgment date; that after he received the judgment, he needed time to study it and decide whether or not to file an appeal; and that thereafter, he was unable to appeal as he was unwell. The applicant’s explanation for the delay would have been credible had he placed before the Court evidence to demonstrate delivery of the judgment without notice; a copy of the notice of appeal he avers that he filed; and evidence that he was unwell and unable to give instructions with respect to the filing of the appeal until close to two years after the date of the judgment that he seeks to appeal from. 1. In the circumstances, I find that the delay in filing the notice of appeal and record of appeal is inordinate and has not been sufficiently explained; and there is therefore no basis on which I can exercise discretion in favour of the applicant. It is my finding therefore that the application dated 5th November 2021 is devoid of merit, and it is hereby dismissed. Since there was no response to the application, I make no order as to costs. **Dated and delivered at Nairobi this 11th day of September, 2026** **MUMBI NGUGI**  **……………………………….** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed DEPUTY REGISTRAR***