Esther Nungari Kamau v Susan Wanjiru Mburu
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
#Key legal issues
#Whether the delay in lodging the Notice of Appeal and in bringing the application was reasonable and sufficiently explained
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.
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.
Whether the intended appeal is arguable
The appeal is arguable, since the trial court's judgment was founded on claims of purchaser status and adverse possession over ancestral land.
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.
Whether the respondent would suffer prejudice if extension of time were granted
The respondent would not be prejudiced, as the applicant would merely be exercising her right of appeal.
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.
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.The Notice of Appeal dated 11th November, 2024 lodged on 14th November, 2024 is deemed as duly and properly filed
- 2.Leave granted to file and serve the appeal out of time; record of appeal to be lodged within twenty one (21) days
- 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.