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Court of AppealAllowedNot stated in the judgment

Nyakoe & another v Nyaboga (Civil Appeal (Application) E077 of 2025) [2025] KECA 1922 (KLR)

Court of Appeal of Kenya
19 November 2025
1,260 words in judgment
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The bottom line

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The Court of Appeal let land owners revive a two-year-delayed appeal because their lawyer closed shop and one was injured, not because they were careless.

What this practically means

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Executive summary

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Sisiria Nyaboke Nyakoe and Vincent Maobe Nyakoe applied under Rule 4 of the Court of Appeal Rules for extension of time to file and serve the notice of appeal and the record of appeal in a land dispute against Jemimah Moraa Nyaboga. Judgment in the Superior Court was delivered on 1st February 2023; a notice of appeal was filed on 19th February 2023, but the applicants' former advocates closed their Kisii office and could not be traced, even through the Law Society, Kisii Branch. In the intervening period, one applicant suffered a debilitating spinal injury in a road traffic accident, and the new advocate had to reconstruct the record from the court file. The respondent opposed, arguing that the application was never served on her, that the notice of appeal was not served within seven days as required by Rule 79(1), and that a delay of nearly two years was inordinate and inexcusable. Applying the established principles in Leo Sila Munyao Mutiso v. Rose Hellen Wangari Mwangi - length of delay, reasons for delay, chances of success, and prejudice to the respondent - the Court found the delay explained: the notice of appeal and bespeaking letter were lodged in time, the advocates' closure was not the applicants' making and was undisputed, and the accident incapacitated one applicant. Satisfied that the intended appeal could resolve the ancestral land dispute with finality, the Court allowed the application, giving the applicants seven days to serve the notice of appeal and forty-five days to file and serve the record of appeal, and awarded the respondent the costs of the application in any event.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted extension of time to file and serve the notice of appeal and the record of appeal out of time
  2. 2.Whether the applicants explained the delay of nearly two years in filing the present application
  3. 3.Whether the applicants are deserving of the exercise of the Court's discretion under Rule 4

Key legal issues

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01

Whether the delay of nearly two years in filing the record of appeal and the application was excusable

Holding

The Court found the delay adequately explained: the notice of appeal was lodged in time, the former advocates closed shop and could not be traced even through the Law Society, and one applicant was incapacitated by a road traffic accident.

Reasoning

The Court reasoned that the applicants lodged the notice of appeal in time and wrote a letter bespeaking typed proceedings. The failure lay with the former advocate who closed the office in Kisii Town, an event not of the applicants' making and not disputed by the respondent. Their efforts to trace the advocate through the Law Society, Kisii Branch were unsuccessful. The further delay was explained by the incapacitating road traffic accident suffered by one applicant. The Court was also weighed by the fact that the intended appeal, concerning ancestral land, could resolve the dispute with finality.

p. 3

Legal principles established

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  • In deciding whether or not to grant an extension of time, the Court considers the length of the delay, the reasons for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicants are granted leave to serve the duly filed notice of appeal upon the respondent within seven (7) days of today's date
  3. 3.The record of appeal shall be filed and served within forty-five (45) days of today's date
  4. 4.The respondent shall have the costs of this application in any event

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Superior Court (High Court, Kisii)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The decision whether or not to extend time is discretionary. The Court in deciding whether or not to grant an extension of time takes into account the following matters: first, the length of the delay, second, the reasons for the delay, thirdly, (possible), the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.
p. 2Principles for extension of time
In the premises therefore, the application has merit. It is hereby allowed. The applicants are granted leave to serve the duly filed notice of appeal upon the respondent within seven (7) days of today's date.
p. 3Final orders - extension granted

Issues in the judgment

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minor

The case number and neutral citation of this application are not stated in the judgment.

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, "Nyakoe & another v Nyaboga (Civil Appeal (Application) E077 of 2025) [2025] KECA 1922 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1922/eng@2025-11-19

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