https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1129

Maweu v Daystar Multipurpose Co-operative Society Ltd (Civil Appeal (Application) E715 of 2025) [2026] KECA 1129 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1129 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E715 of 2025 S ole Kantai, JA June 12, 2026 Between Wanza Kioko Maweu Applicant and Daystar Multipurpose Co-operative Society Ltd Respondent (Being an application for extension of time to lodge an appeal and a record of appeal against the Ruling of the Environment and Land Court at Machakos (Nelly A. Matheka. J.) delivered on 24th August, 2025 in E.L.C. Case No. E008 of 2023) Ruling 1.The applicant Wanza Kioko Maweu prays in the Motion brought under rule 4 of our rules that the court be pleased to extend the “…life time of the notice of appeal dated 30/6/2025 in respect of ELC E008 of 2023 (Machakos)”; that the court be pleased to extend time for filing an appeal and record of appeal; that record of appeal be deemed as duly filed and time be extended for service of the said documents on the respondent. She says that after losing in the said case she lodged a notice of appeal dated 30th June, 2025; that her attempts to lodge a record of appeal were rejected by the registry due to technicalities; that filing of record of appeal was finally allowed on 1st September, 2025 and the Court fees paid on 2nd September, 2025; that she has an arguable appeal. Further, that the suit was dismissed after a successful preliminary objection was taken by the respondent; that she filed and served a notice of appeal; that attempts to file record of appeal on time were rejected by the registry due to technical hitches; that she should be allowed to file appeal out of time. Attached to the Motion is a copy of Originating Summons filed at the High Court of Kenya, Machakos, where the applicant prayed to be declared as owner of a parcel of land by the doctrine of adverse possession; ruling in Machakos ELC No. E008 of 2023 where Matheka, J. found the suit to be res judicata and struck it out; notice of appeal dated 30th June, 2025 and other documents showing attempts to file an appeal. 2.In a replying affidavit Peter Masindano, the Chairperson of the respondent, Daystar Multipurpose Co-operative Society Limited says that the application is a non-starter and misuse of court process; that an appeal should have been filed within 60 days (by 30th August, 2025); that the applicant should have sought leave to file an appeal out of time; that there is an irregular record of appeal. 3.I have seen written submissions by both sides. 4.The principles that apply in an application for leave to extend time were well set out in the oft-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 states as follows:"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." 5.The applicant says that she tried several times to file an appeal before expiry of time but that this was frustrated by the registry which rejected record of appeal several times until time for filing appeal expired. I have seen documents in support of that contention. There is no delay and delay in any event is explained. I do not know whether the appeal has any chance of success considering that preliminary objection taken was successful leading to the suit being struck out but that is not a major consideration in an application of this nature. 6.I am satisfied that the applicant is entitled to my exercise of discretion in her favour. I allow the Motion. The record of appeal lodged on 1st September, 2025 is hereby deemed as duly filed. If not served it should be served within seven (7) days of today. Costs of the Motion will be in the appeal. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026S. ole KANTAI...............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar