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Court of AppealDismissedNot stated in judgment

M’Ikunyua v Mwangi (Civil Appeal (Application) E058 of 2025) [2025] KECA 1968 (KLR)

Court of Appeal
21 November 2025
FSF. Sicha
1,439 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because a 3-month delay was poorly explained and the disputed land had already been transferred.

What this practically means

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Executive summary

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This was an application by notice of motion dated 5th February 2025, brought under rule 4 of the Court of Appeal Rules and Article 159 of the Constitution, by Francis Kirima M'Ikunyua seeking leave to file an appeal out of time against a judgment of the Environment and Land Court delivered on 17th October 2024, together with an order deeming the annexed memorandum of appeal as duly filed. The applicant attributed the delay to his advocate's ill health, which necessitated repeated hospital visits. The respondent opposed, arguing that the application was brought more than 3 months after the statutory period lapsed, that the intended appeal was premised on an application to set aside a judgment already executed, and that the suit property had been transferred to her. Sitting as a single Judge, F. Sicha JA applied the settled principles from Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi. The court found the delay of slightly over 3 months to be inordinate and held that the medical evidence showed the advocate's treatment predated the judgment, and that counsel was present when judgment was delivered without his health being raised. The reasons for the delay were therefore not reasonable or plausible. The court declined to assess arguability at the single Judge stage but found that the respondent would suffer immense prejudice since the judgment had been executed and the property transferred, leaving the intended appeal overtaken by events. The motion was dismissed in its entirety with costs to the respondent on 21st November 2025 at Nairobi.

Key legal issues

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01

Whether the delay of slightly over 3 months was inordinate and sufficiently explained

Holding

The delay was inordinate and not plausibly explained; the advocate's medical evidence showed treatment dating from August 2024, well before the judgment of 17th October 2024, and counsel was present in court when judgment was delivered without his health being raised

Reasoning

The court examined the letter from Arrow Medical Centre showing counsel had sought treatment from 15th August 2024 and had been treated for the past 4 years. Since the judgment was delivered long after counsel began treatment, and counsel was present at delivery of judgment without his health being an issue, the illness could not explain the failure to lodge a Notice of Appeal within 14 days. The delay was therefore inordinate and unexplained.

p. 3
02

Whether the intended appeal was arguable and whether prejudice would be suffered

Holding

The court declined to determine arguability sitting as a Single Judge, but held that the respondent would suffer immense prejudice as the judgment had been executed and the suit property transferred to her, rendering the intended appeal overtaken by events

Reasoning

The court noted that the judgment had been executed and the suit property transferred to the respondent. It could not assess the arguability of the intended appeal sitting as a Single Judge. On prejudice, the applicant had not demonstrated what prejudice he would suffer if the motion were disallowed, whereas allowing it would subject the respondent to endless litigation over a matter already overtaken by events.

p. 3

Legal principles established

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  • In exercising discretion under rule 4 to extend time, the court has wide but unfettered discretion which must be exercised judiciously, having regard to 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.The applicant's motion dated 5th February 2025 is dismissed in its entirety
  2. 2.Costs of the application awarded to the respondent
On appeal from
Environment and Land Court (ELC)
Not stated in judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Article 159 of the Constitution of Kenya (single Judge jurisdiction to extend 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, "M’Ikunyua v Mwangi (Civil Appeal (Application) E058 of 2025) [2025] KECA 1968 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1968/eng@2025-11-21

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