https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3232

Waithaka & others v Miring’u & another (Environment and Land Appeal E005 of 2023) [2026] KEELC 3232 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3232 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E005 of 2023 JM Onyango, J May 28, 2026 Between Mugo Waithaka & Others Appellant and Hellen Muthoni Miring’u 1st Respondent Henry Kinyua Mkura 2nd Respondent Ruling 1.Before this Court is a Notice of Motion dated 21st May 2025 in which the Appellant/Applicant seeks the following Orders: 1.Spent… 2.That this Honourable Court be pleased to grant leave to the Appellant herein to file the record of appeal out of time. 3.That the record of appeal filed on 6th May 2025 be admissible in court and be considered as properly filed. 4.That costs of this suit be in the cause. 2.The application is premised on the grounds on the face of it and the supporting affidavit of Peter Kariuki Njiri sworn on even date. 3.The Applicant contends that, on 10th March 2025, the Court directed that the Record of Appeal be filed within thirty (30) days. The Applicant attributes its inability to comply with that direction to the unavailability of the typed proceedings within the prescribed period. The Applicant states that the Record of Appeal was eventually filed on 6th May 2025. On that footing, the Applicant now invites the Court to admit the Record of Appeal as duly and properly filed notwithstanding the lapse of the period earlier ordered by the Court. 4.The application was vehemently opposed by Respondents through the replying affidavit of Onchiri Nyangaresi Rodgers sworn on 3rd June 2025. 5.The Respondents’ position is that the appeal stood dismissed on 10th April 2025 upon the Applicant's failure to comply with the Court's order issued on 10th March 2025, which, according to them, was expressly self-executing. In the Respondents’ view, there is no subsisting appeal capable of being revived through the present application. 6.The Respondents further contend that the Record of Appeal presently sought to be admitted is not properly on record, having been filed well outside the period stipulated by the Court. They submit that the Applicant neither complied with the timelines imposed by the Court nor sought an extension of time upon the lapse thereof. 7.The Respondents accuse the Applicant of persistent and inordinate indolence in the prosecution of the appeal. They point out that on 10th March 2025, learned counsel for the Applicant informed the Court that the typed proceedings had been obtained and sought thirty (30) days within which to file the Record of Appeal. Notwithstanding that representation, the Applicant failed to file the Record within the period granted and equally failed to seek enlargement of time upon the expiry of the Court-imposed deadline. 8.The Respondents further submit that this was not an isolated default. According to them, the Applicant had previously failed to comply with a similar direction issued by the Court on 14th July 2023 requiring the filing of the Record of Appeal. It is their contention that, for a period exceeding two years, the Applicant has repeatedly been afforded opportunities to regularise and prosecute the appeal but has consistently failed to do so. In those circumstances, the Respondent argue that the applicant’s delay cannot be attributed to inadvertence or circumstances beyond the Applicant's control, but rather demonstrates a sustained lack of diligence in the conduct of the appeal. 9.The Respondents further contend that the Applicant's prolonged inaction has occasioned prejudice, particularly to the 1st Respondent. They maintain that the appeal has remained pending for close to three years while the Applicant continues to occupy the suit property. In their view, the interests of justice and the need for finality in litigation weigh against the grant of the orders sought and urge the court to dismiss the application and the appeal with costs. 10.The Application herein was canvassed by way of written submissions. 11.Having considered the application, the replying affidavit in opposition, the rival submissions and the relevant authorities, the key issue that emerges for determination is: Whether sufficient cause has been shown to admit the Record of Appeal filed out of time. Analysis and Determination 12.The Court is called upon to determine whether it should exercise its discretion in favour of the Applicant by admitting a Record of Appeal filed out of time. At its core, the application invites the Court to balance the need for adherence to procedural timelines on the one hand, and the overarching objective of substantive justice on the other. 13.The Court is clothed with discretion to enlarge time where sufficient cause is shown. 14.The applicant bears the burden of explaining the delay in a manner that satisfies the Court that the default is neither wilful nor inordinate, or if inordinate, is sufficiently excusable. 15.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court set out the governing principles for extension of time as follows:“To file an appeal out of time and seek the court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence……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 courtWhether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; andWhether in certain cases, like election petitions, public interest should be a consideration for extending time.” 16.Essentially, Extension of time is an equitable indulgence, anchored upon judicial discretion, and conditioned upon a satisfactory explanation for delay, absence of undue prejudice to the opposing party, and the overall interests of justice as may be disclosed by the circumstances of each case. 17.The Court has considered the application, the explanation proffered for the delay, and the opposition advanced by the Respondents. 18.The Court notes that on 10th March 2025, counsel for the Applicant informed the Court that the typed proceedings had not yet been obtained and sought thirty (30) days within which to file the Record of Appeal. The Court acceded to that request and granted what was expressly a final extension of thirty (30) days for compliance. The timeline was clear, specific, and binding but was, however, not complied with. No application for enlargement of time was made upon its lapse, and no satisfactory explanation has been placed before the Court to account for the ensuing default. 19.The explanation advanced, premised on delay in obtaining typed proceedings, does not displace the fact of non-compliance with a final and binding timeline. It neither accounts for the ensuing lapse nor the absence of any prompt steps to regularise default. The delay thus remains inordinate and inadequately explained in material respects. 20.The discretion of the Court to extend time is not a refuge for default. It is an instrument of justice, to be deployed where a litigant demonstrates diligence, candour, and a credible account of delay. Those qualities are absent in the instant application. 21.Accordingly, the Court finds no basis upon which to exercise its discretion in favour of the Applicant. 22.The application dated 21st May 2025 is dismissed with costs to the Respondents. 23.It is so Ordered. DATED, SIGNED AND DELIVERED, VIRTUALLY AT THIKA THIS 28TH DAY OF MAY 2026......................J. M. ONYANGOJUDGEIn the presence of:1. Mr. Onchiri for the Respondent2. No appearance for the ApplicantCourt Assistant: Hinga