https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1294

Kamau v Ngoru & another (Legal representatives of the Estate of Samuel Ngoru Kamau - Deceased) (Civil Application E037 of 2026) [2026] KECA 1294 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1294 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E037 of 2026 Katwa Kigen, JA July 3, 2026 Between Wambui Mwangi Kamau Applicant and William Kamau Ngoru & Amos Mungai Kamau (Legal representatives of the Estate of Samuel Ngoru Kamau - Deceased) Respondent (Being an application for leave to file an appeal out of time against the Judgment of the Environment and Land Court of Kenya at Muranga (N. Gacheru, J., delivered on 25th May, 2023 in E.L.C. Case No. E027 of 2023) Ruling 1.The application before me for determination is one dated 9th April, 2026. It is brought under the provisions of Rule 4 of the Court of Appeal Rules, 2022, together with sections 3A and 3B of the Appellate Jurisdiction Act. Although the motion is omnibus in nature and seeks several substantive orders, some of which fall to be considered by a full bench, I will restrict myself to prayers (2) and (3), which seek enlargement of time to lodge and serve a Notice of Appeal and to file and serve the intended appeal out of time, being matters properly within my jurisdiction as a single Judge. 2.The application is grounded on the reasons appearing on the face of the motion and those contained in the supporting affidavit of Wambui Mwangi Kamau, sworn on 9th April, 2026, together with the affidavit of counsel Erick Munene, sworn contemporaneously in support of the certificate of urgency. The factual basis is that judgment in Murang’a ELC Appeal No. E027 of 2023 was delivered on 29th April, 2025 in favour of the respondents, with a decree subsequently extracted on 19th June, 2025. The applicant, being dissatisfied with the whole of the said judgment and decree, instructed an advocate in Murang’a to lodge an appeal immediately after delivery thereof, paid part of the legal fees demanded, and genuinely believed that the necessary steps had been taken to preserve her right of appeal. She is an elderly widow with limited formal education, modest financial means, and no legal training, who was unable to frequently travel to Murang’a to follow up on the progress of the intended appeal. She relied on the assurances of the advocate initially engaged, only to later discover that no notice of appeal had been lodged and no appeal instituted. Upon discovering the omission, she promptly instructed her present advocates to take over the matter and regularize the same without delay. 3.The delay in lodging the notice of appeal and instituting the appeal was neither deliberate, inordinate, nor contumelious, but was occasioned by circumstances beyond her control, including mistake and inadvertence of counsel. The applicant contends that the intended appeal is arguable and raises serious points of law, including whether the learned Judge erred in relying on an alleged 1971 case not pleaded or properly produced in evidence, whether adverse findings were improperly made against her notwithstanding her not testifying, whether costs were wrongly awarded in respect of a dismissed suit, and whether the burden of proof was improperly shifted. She further avers that unless leave is granted, she will be permanently shut out from challenging the impugned judgment and decree, thereby occasioning grave prejudice, whereas the respondents will suffer no prejudice incapable of compensation by way of costs. 4.The application is opposed. The respondent, vide the replying affidavit dated 8th May, 2026, opposes the motion on the grounds that judgment in Murang’a Environment and Land Court Appeal No. E027 of 2023 was delivered on 29th April, 2025, setting aside the judgment of the Chief Magistrate’s Court in ELC Case No. E07B of 2021. By that judgment, the appellate court declared the respondents the bona fide owners of Land Parcel No. LOC.17/IGANJO/247 and issued a permanent injunction against the applicant. The respondent contends that the applicant, though aggrieved by the said judgment, failed to comply with the statutory provisions and timelines under Rules 77 and 84 of the Court of Appeal Rules. 5.It is deponed that the applicant has not satisfied the settled parameters for extension of time, which include the length of delay, reasons for the delay, chances of success of the intended appeal, prejudice to the respondent, effect of delay on public administration, importance of compliance with time limits, resources of the parties, and conduct of the parties. The respondent points out that the application has been brought almost one year after delivery of judgment, a period that is prolonged and inordinate, and that the reasons advanced are neither reasonable nor plausible. The applicant admits to having modest financial means and to having engaged an advocate to pursue the appeal, but who failed her. The respondent asserts that this demonstrates indolence on the part of the applicant, further evidenced by her failure to prosecute her case at the trial court, which led to its dismissal. 6.The respondent maintains that the intended appeal is not arguable and is merely intended to deny him the fruits of his judgment. He further avers that the applicant has not satisfied the twin principles for the grant of orders under Rule 5 (2)(b), namely that the appeal is arguable and that it would be rendered nugatory absent a stay. On this basis, the respondent prays that the application be dismissed with costs. 7.Both parties have filed their respective written submissions. The applicant’s submissions are dated 8th June, 2026, while the respondents’ submissions are dated 10th June, 2026. 8.The applicant submits that her motion is brought under Rule 4 of the Court Rules, 2022, seeking leave to lodge and serve a notice of appeal and record of appeal out of time against the judgment delivered on 29th April, 2025. She argues that although the delay is close to one year, it is satisfactorily explained by her personal circumstances as an elderly widow of limited education, modest financial means, and lack of legal training. She contends that she relied on an advocate who failed to act, and upon discovering the omission, she promptly instructed new counsel. The applicant maintains that the delay was neither deliberate nor inordinate but occasioned by circumstances beyond her control. She further submits that the intended appeal raises serious and arguable points of law, including contradictory findings on fraud, reliance on extraneous matters, and failure to re-evaluate evidence as required of a first appellate court. She emphasizes that unless leave is granted, she will suffer grave prejudice as the respondents may alienate the property, rendering the appeal nugatory, whereas the respondents will suffer no prejudice incapable of compensation by costs. She invokes the overriding objective under Rule 3 and Article 50 of the Constitution, urging the court to exercise discretion in her favour to avoid a miscarriage of justice. In support, she cites Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231, where the Court of Appeal held that discretion under Rule 4 is unfettered but must be exercised judicially, considering length of delay, reasons, chances of success, and prejudice. She also relies on Fakir Mohamed vs. Joseph Mugambi & 2 Others [2005] eKLR, which expanded the factors to include public administration and resources of the parties, and Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, which emphasized that delay must be satisfactorily explained. Additionally, she invokes Shah vs. Mbogo [1967] EA 116, approved in Mbogo vs. Shah [1968] EA 93, that discretion exists to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake. 9.The respondents, on the other hand, submit that the application is fatally defective and ought to be dismissed. They argue that the delay of nearly one year is prolonged and inordinate, and the reasons advanced are neither reasonable nor plausible. They point out that the applicant admits to having engaged an advocate and to being of modest means, hence capable of complying with statutory timelines. They characterize her conduct as indolent, noting that she even failed to prosecute her case at the trial court. The respondents further contend that the intended appeal is not arguable and is merely intended to deny them the fruits of their judgment. They submit that the applicant has not satisfied the twin principles under Rule 5 (2)(b), namely that the appeal is arguable and that it would be rendered nugatory absent a stay. In support, they also cite Leo Sila Mutiso vs. Hellen Wangari Mwangi (supra) and Fakir Mohamed vs. Joseph Mugambi (supra), reiterating that prolonged and unexplained delay disentitles an applicant to extension of time. They further rely on David Morton Silverstein vs. Atsango Chesoni [2002] eKLR, where the Court of Appeal held that for a stay to issue, the appeal must be arguable and capable of being rendered nugatory without a stay. They therefore urge the court to dismiss the application with costs. 10.Rule 4 vests this Court with unfettered discretion to extend time, but such discretion must be exercised judicially and upon sufficient cause being shown. The guiding principles were set out in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi (supra) where the Court stated:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated 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." 11.Applying these principles, the delay herein is close to one year. While this period is not insignificant, the applicant explains that she is an elderly widow of limited education, modest financial means, and no legal training, who relied on an advocate who failed to act. Upon discovering the omission, she promptly instructed new counsel. The respondents argue that the delay is prolonged and inordinate, that the reasons advanced are neither reasonable nor plausible, and that the applicant has been indolent even at trial. 12.On the chances of success, the draft memorandum of appeal raises arguable points of law, including whether the learned Judge erred in relying on an alleged 1971 case not pleaded or properly produced in evidence, whether adverse findings were made against the applicant notwithstanding her not testifying, and whether the burden of proof was improperly shifted. These are not frivolous grounds and merit consideration. 13.On prejudice, the respondents retain the benefit of the decree and may enforce it should the appeal fail. The applicant, however, risks permanent loss of land forming part of her late husband’s estate, which she contends is of immense sentimental and economic value. The risk of alienation to third parties before the appeal is heard is real and would render the appeal nugatory. 14.Balancing all factors, I am persuaded that the delay, though lengthy, has been satisfactorily explained and that the intended appeal raises arguable issues. The prejudice to the applicant if leave is denied far outweighs any prejudice to the respondents, which can be compensated by costs. Accordingly, I allow prayers (2) and (3) of the motion dated 9th April, 2026. The applicant is granted leave to lodge and serve a Notice of Appeal and to file and serve the intended appeal out of time within thirty (30) days from the date hereof. Costs shall abide the outcome of the intended appeal. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.KATWA KIGEN K. J.....................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar