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Court of AppealAllowedNot stated in the judgment (application dated 29th April 2025)· [2025] KECA 1794 (KLR)

Sitonik Ole Lotapash v Humphrey Mbugua Njache

Court of Appeal of Kenya
31 October 2025
945 words in judgment
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The bottom line

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Kenya's Court of Appeal let a landowner appeal late because a one-day filing mistake by the former lawyer was genuine and quickly fixed once discovered.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (Warsame, JA) delivered on 31st October 2025 on an application dated 29th April 2025 under Rule 4 of the Court of Appeal Rules seeking extension of time to file a notice of appeal out of time. The applicant, registered owner of Laikipia/Marmanet/4563, sought to challenge a judgment of 11th February 2025 by K. Bor, J in Nyahururu Environment and Land Court Case No. 326 of 2017, in which the respondent successfully claimed ownership of the property by adverse possession. The applicant's notice of appeal was filed on 26th February 2025, one day outside the period prescribed by Rule 77(2), and the present application was lodged about two months and three weeks after judgment. The respondent opposed, contending the delay was inordinate and unexplained, that the appeal sought to introduce new issues and drag a non-party into the appeal, and that registration of the property in the respondent's name on 5th March 2025 rendered the appeal nugatory. Applying the Leo Sila Mutiso principles, the court found the one-day lapse minimal, accepted that the applicant learned of the error only when new counsel reviewed the filing receipts, held that a litigant should not be penalized for genuine inadvertent errors of counsel, and found the draft grounds on ownership, adverse possession and evaluation of evidence arguable. The application was allowed with no order as to costs, and the applicant was granted fourteen days to file and serve a fresh notice of appeal. No decision of the court below was disturbed by this ruling.

Key legal issues

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01

Whether the delay in filing the notice of appeal (one day) and the subsequent application (about two months and three weeks) was satisfactorily explained

Holding

The delay was satisfactorily explained; the notice was missed by one day and the applicant only became aware of the lapse upon engaging new counsel.

Reasoning

The court treated the one-day lapse in filing the notice as minimal, and excused the two-month delay in making the application because the applicant learned of the error only when new counsel reviewed the filing receipts. The error was an inadvertent mistake of the former advocates, and the applicant acted timeously and diligently once aware.

p. 2
02

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal raises substantial, arguable grounds concerning ownership, adverse possession and evaluation of evidence.

Reasoning

The court examined the draft memorandum annexed to the supporting affidavit and found the grounds challenging the trial judge's factual findings on ownership and adverse possession arguable and meriting full ventilation on appeal, satisfying the arguability factor in the Rule 4 discretion.

p. 2

Legal principles established

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  • Under Rule 4 of the Court of Appeal Rules the court has an unfettered but judicious discretion to extend time, guided by the length of the delay, the reason for the delay, the chances of success of the appeal, and prejudice to the respondent.
  • A litigant should not be penalized for genuine, inadvertent errors of their legal representatives that do not demonstrate deliberate disregard for court procedures.

Court orders

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  1. 1.The application dated 29th April 2025 seeking extension of time is allowed with no orders as to costs
  2. 2.The Applicant is granted fourteen (14) days from the date of the ruling to file and serve a fresh notice of appeal
On appeal from
Environment and Land Court, Nyahururu
Nyahururu Environment and Land Court Case No. 326 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Sitonik Ole Lotapash v Humphrey Mbugua Njache", Case Analysis (2025). Not stated in the judgment (application dated 29th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1794/eng@2025-10-31

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