Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated (Motion under rules 1, 4 and 77 of the Court of Appeal Rules, 2022, arising from Muranga ELC E004 of 2022)· [2025] KECA 570 (KLR)

Esther Nungari Kamau v Susan Wanjiru Mburu

Court of Appeal of Kenya
14 March 2025
968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal let a 90-year-old woman appeal late, accepting that being unable to pay her previous lawyer explained the missed deadline.

What this practically means

#

Executive summary

#
This was a single-judge (Chamber) application before the Court of Appeal at Nyeri under rules 1, 4 and 77 of the Court of Appeal Rules, 2022, in which Esther Nungari Kamau sought to have her Notice of Appeal, lodged on 14th November 2024 out of time, deemed properly filed, and leave to file and serve an appeal out of time against the judgment of the Environment and Land Court at Muranga in ELC E004 of 2022, which had allowed the respondent's Originating Summons with costs. The respondent opposed, arguing the application itself was filed late and unexplained. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 - length of delay, reason for delay, arguability of the appeal and prejudice to the respondent - Kantai JA found no unreasonable delay: the applicant, about 90 years old, was hampered by inability to pay her previous advocate who held onto her file, and once she retrieved it her new advocates promptly came on record, proceedings were bespoken timeously and the Notice of Appeal was lodged less than a month after judgment. The court held the appeal arguable, since it concerned ancestral land claimed by the respondent as purchaser and by adverse possession, and found no prejudice to the respondent. The application was allowed; the Notice of Appeal was deemed duly and properly filed, the record of appeal was to be lodged within twenty-one days, and costs of the motion were made costs in the appeal.

Key legal issues

#
01

Whether the delay in lodging the Notice of Appeal and in bringing the application was reasonable and sufficiently explained

Holding

The delay was not unreasonable; the applicant's inability to pay her previous advocate, who held onto the file, together with her advanced age, explained the delay.

Reasoning

The court noted the judgment was delivered on 17th October 2024 and the Notice of Appeal was lodged on 14th November 2024, less than a month later. The applicant took reasonable steps to retrieve her file once able to pay, her new advocates immediately came on record by consent, and proceedings were applied for timeously. Her age of about 90 years also affected her mobility.

p. 2
02

Whether the intended appeal is arguable

Holding

The appeal is arguable, since the trial court's judgment was founded on claims of purchaser status and adverse possession over ancestral land.

Reasoning

The applicant deponed that she would lose her ancestral land if the ELC judgment were not challenged. The respondent had approached the ELC through an Originating Summons claiming the land both as a purchaser and by adverse possession. On those grounds the court was satisfied the appeal was not frivolous.

p. 2
03

Whether the respondent would suffer prejudice if extension of time were granted

Holding

The respondent would not be prejudiced, as the applicant would merely be exercising her right of appeal.

Reasoning

The court balanced the fourth Mutiso principle and found no prejudice to the respondent from allowing the application. Exercising the constitutional right of appeal does not, on the facts, prejudice the respondent; any costs incurred are covered by the order that costs of the motion be in the appeal.

p. 2

Legal principles established

#
  • In deciding whether to extend time for appealing the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

#
  1. 1.The Notice of Appeal dated 11th November, 2024 lodged on 14th November, 2024 is deemed as duly and properly filed
  2. 2.Leave granted to file and serve the appeal out of time; record of appeal to be lodged within twenty one (21) days
  3. 3.Costs of the Motion to be in the appeal
On appeal from
Environment and Land Court, Muranga
Muranga ELC E004 of 2022
Jurisdiction invoked
Rules 1, 4 and 77 of the Court of Appeal Rules, 2022 (inherent power and extension of time)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Esther Nungari Kamau v Susan Wanjiru Mburu", Case Analysis (2025). Not stated (Motion under rules 1, 4 and 77 of the Court of Appeal Rules, 2022, arising from Muranga ELC E004 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/570/eng@2025-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.