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Court of AppealDismissedApplication dated 19th August 2025 (Court of Appeal, Nyeri)· [2025] KECA 1833 (KLR)

Mark Kithinji Mbatiah v Najahait Faizal Hightower Alias Hightower Faizal Wilber Earl (sued As The Legal Representative of The Estate of Wilber Hightower (deceased))

Court of Appeal of Kenya
7 November 2025
2,160 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time for an appeal because a seven-month unexplained delay and doubtful medical evidence showed the applicant was unworthy of an equitable remedy.

What this practically means

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Executive summary

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This is a single-judge (K. M'Inoti, JA) ruling of the Court of Appeal at Nyeri on a rule 4 application by Mark Kithinji Mbatiah for extension of time to file a notice of appeal against an Environment & Land Court judgment of 30 January 2025, which dismissed his adverse-possession claim over LR No Ntima/Igoki/1496 with costs. The applicant filed no notice of appeal within the 14 days prescribed by rule 77(2), and instead brought the application seven and a half months later, citing hospitalisation since 2023. The respondent objected on jurisdiction, arguing a notice of appeal is a jurisdictional prerequisite, and on the merits, disputing the medical evidence. The court first disposed of the jurisdictional question, holding that rule 4 expressly permits an extension application 'whether before or after the doing of the act', and distinguishing Apungu Arthur Kibira and Tsilla Nkirote Muthomi as concerning a defective notice and a stay application respectively. On the merits it applied the established factors (delay, explanation, conduct, prejudice, public interest, bona fide issues) but found the delay inordinate and unexplained: the medical report from 'Dr. Paul' was deemed tailor-made and contrived, the illness dated from 2017 during which the applicant had prosecuted the trial, and no deterioration after judgment was shown. Invoking Odinga v IEBC, the court held that Article 159(2)(d) does not excuse compliance with procedural timelines, and that inherent jurisdiction cannot be invoked where rule 4 expressly applies. Finding the applicant lacking candour and unworthy of an equitable remedy, the court dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the absence of a filed notice of appeal ousts the Court's jurisdiction to hear an extension-of-time application

Holding

Rule 4 allows an application for extension of time either before or after the act, so an applicant may seek extension before filing a notice of appeal; the jurisdictional objection fails.

Reasoning

The respondent relied on Apungu Arthur Kibira, Bogonko and Tsilla Nkirote Muthomi, but the court distinguished them: Kibira concerned an appeal already filed on a defective notice, and Muthomi was a stay-of-execution application. The plain words of rule 4, 'whether before or after the doing of the act', cover pre-filing applications. Salat, a Supreme Court decision, speaks to practice in that Court, not here.

p. 3
02

Whether the applicant's illness satisfactorily explained the seven-and-a-half-month delay

Holding

No. The applicant had lived with the condition since 2017 and conducted the trial with it; the medical report was contrived for the application; no deterioration after judgment was shown.

Reasoning

The only explanation was illness since 2023. The attached report attributed to 'Dr. Paul' was viewed as tailor-made and lacking genuineness. The applicant had managed the ELC trial despite the condition, and there was no evidence of supervening illness after the 30 January 2025 judgment. A notice of appeal is a simple one-page document requiring no special effort. The court found the applicant had attempted to mislead it.

p. 4
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Whether Article 159(2)(d) and the Court's inherent jurisdiction override statutory timelines

Holding

No. Timelines serve Article 159(2)(b) (justice not delayed) and cannot be dismissed as technicalities; inherent powers cannot displace an express rule.

Reasoning

Relying on Odinga v IEBC, the court held Article 159(2)(d) was never meant to oust compliance with procedural imperatives; constitutionally decreed timelines are not undue proceduralism. Since rule 4 expressly governs extension of time, the applicant must bring himself within that rule rather than invoke residual inherent powers.

p. 3

Legal principles established

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  • Rule 4 permits an extension of time application whether made before or after doing the act, including before filing a notice of appeal or after filing it out of time.
  • Extension of time is an equitable remedy granted on reason, not as of right; lack of candour disqualifies an applicant.
  • Procedural timelines cannot be wished away as mere technicalities under Article 159(2)(d); the Court's inherent powers cannot be invoked where rule 4 expressly regulates extension of time.
  • Where the delay is inordinate and unexplained, the Court need not consider the other extension-of-time factors.

Court orders

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  1. 1.Dismissal of the application dated 19th August 2025 seeking extension of time to file a notice of appeal
  2. 2.Costs of the application to the respondent
On appeal from
Environment & Land Court at Meru
Suit over LR No Ntima/Igoki/1496 (number not stated)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time); Article 159(2)(d) of the Constitution invoked by applicant

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, "Mark Kithinji Mbatiah v Najahait Faizal Hightower Alias Hightower Faizal Wilber Earl (sued As The Legal Representative of The Estate of Wilber Hightower (deceased))", Case Analysis (2025). Application dated 19th August 2025 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1833/eng@2025-11-07

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