Ngenda New Farmers’ Company Limited & 4 others v Mbugua & 5 others (Civil Application E041 of 2022) [2025] KECA 955 (KLR)
The bottom line
#Kenya's Court of Appeal allowed late appeals to proceed, ruling Covid-19 delays and a lawyer's mistake shouldn't permanently block justice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the full Court should interfere with the single Judge's exercise of discretion under Rule 4 in dismissing the application for extension of time
- 2.Whether the applicants gave a reasonable explanation for the delay in filing the notice of appeal and memorandum of appeal, including the role of the Covid-19 pandemic
- 3.Whether the mistake of counsel in failing to file a notice of appeal should be visited on the litigants
- 4.Whether the respondents would suffer prejudice if extension of time were granted
Key legal issues
#Standard for interference with a single Judge's Rule 4 discretion on a reference to the full Court
The full Court interferes only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the law or evidence, or was plainly wrong.
The discretion under Rule 4, though unfettered, is exercised by the single Judge on behalf of the whole Court and must be based on principles of law. The reference is not an opportunity for the full bench to substitute its own view; a mere preference for a different outcome is insufficient. The Court adopted its earlier statement in the John Koyi Waluke reference and associated authorities.
Whether the Covid-19 pandemic and counsel's failure to file a notice of appeal constituted sufficient reason for the delay
Yes. The Court took judicial notice of the pandemic restrictions imposed from March 2020 to 2022, found the applicants' explanations reasonable, and treated the failure to file a notice of appeal as a mistake of counsel that should not defeat the application.
The Court found the applicants had been diligent in following up on proceedings and the certificate of delay, and that the restrictions on physical access to courts explained much of the delay. Relying on Belinda Muras vs Amos Wainaina, it held that a mistake by counsel does not close the door of justice. The application was also unopposed and no prejudice was demonstrated.
Prejudice to the respondents if extension of time were granted
No prejudice would be suffered, particularly as the respondents did not respond to the application.
The single Judge had found that allowing the application would unduly prejudice the accrued interests of the respondents, but the full Court noted the application was unopposed, that no replying affidavit was filed, and that the respondents therefore demonstrated no prejudice which should have moved the Judge to a favourable order.
Whether the intended appeal raised arguable issues meriting extension of time
Yes. The intended appeal raised substantive issues concerning two titles over one parcel of land, subdivision and sale to third parties despite a subsisting charge, and fraud, which deserved consideration by the Court.
The Court considered the memorandum of appeal and found the grounds were not idle: a parcel of land cannot have two titles, and where fraud is raised in such circumstances the matter deserves the Court's consideration. This weighed in favour of exercising discretion in the applicants' favour notwithstanding the length of the delay.
Legal principles established
#- A single Judge exercising the Rule 4 discretion does so on behalf of the whole Court, and the full bench on a reference will interfere only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the law or evidence, or was plainly wrong.
- It is not enough on a reference to show that the full Court, sitting in the place of the single Judge, would have reached a different result.
- A mistake made by counsel, even by experienced counsel, is not a bar to the court doing what is necessary to rectify it where the interests of justice so dictate.
Court orders
#- 1.Prayers 1 and 2 of the application dated 10th June 2022 are granted
- 2.The applicants do file the notice of appeal within 14 days from the date hereof
- 3.The applicants are granted leave to file and serve the memorandum of appeal out of time within 21 days of the date hereof
- 4.Costs of the application will abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (decision of a single Judge, A. Muchelule, JA)
- Not stated
- Jurisdiction invoked
- Rule 55(1)(b) of the Court of Appeal Rules - reference to the full Court from a decision of a single Judge
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
in exercising the unfettered discretion under Rule 4 of this Court’s Rules, a single judge of the Court is doing so on behalf of the whole Court
It is not enough, for example, to show the full Court that had it been sitting in place of the single Judge, it would have arrived at a difierent result.
The door of justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better.
A parcel of land cannot have two titles, and furthermore, where fraud is an issue raised in such circumstance, that is a matter deserving of consideration by this Court.
We also find no prejudice will be sufiered by the respondent if the applicants are granted the relief sought, bearing in mind that the respondent did not respond to the application.
1. Prayers 1 and 2 of the application dated 10th June 2022 are granted. 2. The applicants do file the notice of appeal within 14 days from the date hereof. 3. The applicants are granted leave to file and serve the memorandum of appeal out of time within 21 days of the date hereof. 4. Costs of the application will abide the outcome of the appeal.
Issues in the judgment
#The judgment gives conflicting dates for when the new advocates came on record: the single Judge's ruling quoted records 20th October 2020, while the full Court's narrative and counsel's submissions record 29th October 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngenda New Farmers’ Company Limited & 4 others v Mbugua & 5 others (Civil Application E041 of 2022) [2025] KECA 955 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 10th June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/955/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.