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Court of AppealAllowedCivil Application No. E143 of 2024· [2025] KECA 1691 (KLR)

Judson Mwenda Gitunga (suing As The Legal Representative of Itunga Kiragua Alias M'itonga Kiragua) & 6 others v Juius Mbataru & 1 other

Court of Appeal of Kenya
24 October 2025
SKS. ole Kantai
934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal in Nyeri gave a family a second chance to file their appeal on time because they acted quickly and explained what went wrong.

What this practically means

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Executive summary

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This is a ruling by S. ole Kantai, JA, sitting as a single Judge of the Court of Appeal at Nyeri, on a Motion by the applicants seeking leave to file a Notice of Appeal and Record of Appeal out of time. The underlying dispute is Meru ELC No. E003 of 2022, decided against the applicants on 23rd November 2023. They filed and served a notice of appeal in time, but after the Record of Appeal was struck out by a ruling of this Court delivered on 18th July 2025 - on the ground that they should first have sought leave to file it out of time, the court having found they were not entitled to rely on the proviso to rule 84 - they moved promptly for extension of time. Applying Rule 4 of the Court of Appeal Rules and the four-factor test from Leo Sila Mutiso v Rose Hellen Wangari Mwangi (length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent), the Judge found no delay (the application was lodged less than a week after the ruling), the delay explained, the appeal potentially arguable, and no prejudice to the respondents since the applicants were exercising a right of appeal. The application was allowed; the applicants were ordered to lodge a Notice of Appeal within fourteen days and the Record of Appeal fourteen days thereafter, with costs of the Motion in the appeal. This is an interlocutory exercise of discretion, not a binding pronouncement on the merits of the intended appeal.

Key legal issues

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01

Extension of time to file a Notice of Appeal and Record of Appeal out of time

Holding

The discretion under Rule 4 was exercised in favour of the applicants because the application was filed within a week of the striking-out ruling, the delay was explained, the appeal was potentially arguable, and no prejudice to the respondents was shown.

Reasoning

The court applied the four-factor test from Leo Sila Mutiso: length of delay, reason for delay, arguability of the appeal, and prejudice. The application dated 23rd July 2025 followed the 18th July 2025 striking-out ruling within days; the applicants had filed and served a notice of appeal in time and the circumstances of the striking out were properly explained; the applicants hold a right of appeal whose exercise does not prejudice the respondents.

p. 3

Legal principles established

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  • In deciding an application to extend time, 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

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  1. 1.Leave granted to file a Notice of Appeal out of time, to be lodged within fourteen (14) days of the ruling
  2. 2.Record of Appeal to be lodged fourteen (14) days thereafter
  3. 3.Costs of the Motion to be in the appeal
On appeal from
Environment and Land Court
Meru ELC No. E003 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), sitting as a single Judge

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Judson Mwenda Gitunga (suing As The Legal Representative of Itunga Kiragua Alias M'itonga Kiragua) & 6 others v Juius Mbataru & 1 other", Case Analysis (2025). Civil Application No. E143 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1691/eng@2025-10-24

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