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Court of AppealAllowedNotice of motion dated 12th September 2025 (Civil Application)

Busienei & 2 others v Mosbey & 5 others (Civil Application E058 of 2025) [2025] KECA 2049 (KLR)

Court of Appeal of Kenya
27 November 2025
895 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed landowners extra time to appeal because they explained the delay with a certificate of delay.

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 Eldoret (J. Mativo, JA) delivered on 27th November 2025 on a notice of motion dated 12th September 2025 by which three applicants sought extension of time to file and serve a notice of appeal and record of appeal against a judgment of the Environment and Land Court, Eldoret, in Eldoret E&LC Case No. E019 of 2022 (O.S) rendered on 24th October 2024. The application was brought under Sections 3A, 3B and 5 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022. The applicants explained that their notice of appeal was filed out of time, that certified proceedings were only furnished on 31st July 2025, and that a certificate of delay was issued on 7th August 2025; a related application had been dismissed for non-attendance occasioned by technological challenges. The respondent opposed, arguing an 11-month delay, that the applicants had sold land to respondents who had developed permanent dwellings, and that granting the application would prejudice the respondents' ownership. The court framed a single question: whether the applicants had met the threshold for extension of time. Applying the Supreme Court's decision in Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet [2018] eKLR, which requires a plausible and satisfactory explanation for delay and absence of prejudice, the court found the delay satisfactorily explained by the certificate of delay, the appeal arguable on its fourteen grounds, and no prejudice to the respondents. The application was allowed; the notice of appeal was deemed properly filed and served, the applicants were directed to file and serve the record of appeal within 30 days, and costs were ordered to abide the appeal.

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 have met the threshold for the exercise of the Court's discretion to grant leave to file and serve a notice of appeal and record of appeal out of time

Key legal issues

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01

Whether the applicants satisfied the threshold for extension of time to file and serve a notice of appeal and record of appeal

Holding

Yes. The delay was satisfactorily explained by the certificate of delay dated 7th August 2025, the intended appeal is arguable, and the respondents will suffer no prejudice.

Reasoning

The court applied the Supreme Court's test in Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet, which requires a plausible and satisfactory explanation for delay as the key that unlocks the court's flow of discretionary favour. The delay in filing the record of appeal was explained by the certificate of delay, showing the certified proceedings were only furnished on 31st July 2025. The court examined the fourteen grounds in the memorandum of appeal and found the appeal arguable, and found no prejudice to the respondents.

p. 2

Legal principles established

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  • Extension of time under Rule 4 requires a satisfactory explanation for the delay and absence of prejudice to the respondent; there is no minimum or maximum period of delay prescribed by law.

Court orders

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  1. 1.The application is allowed
  2. 2.The annexed notice of appeal is deemed as properly filed and served
  3. 3.The applicants are directed to file and serve a record of appeal within 30 days of the ruling
  4. 4.Costs shall abide the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court, Eldoret
Eldoret E&LC Case No. E019 of 2022 (O.S)
Jurisdiction invoked
Sections 3A, 3B & 5 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022

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 application is thus allowed; the annexed notice of appeal be and is hereby deemed as properly filed and served. The applicants are directed to file and serve a record of appeal within 30 days of this ruling. Costs shall abide the appeal.
p. 3Final orders - extension of time granted
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.
p. 2Test for extension of time
I have also looked at the fourteen grounds in the memorandum of appeal and I am satisfied that the appeal is arguable. The respondents will not be prejudiced if this application is granted.
p. 2Arguability and absence of prejudice

Issues in the judgment

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minor

The name of the respondent(s) is not given in the judgment; the replying affidavit is merely attributed to 'the 1st respondent', and the number of respondents is unclear.

minor

The judgment cites the same case with slightly different party-name spellings ('Paul Kipkorir Bett' in counsel's submissions vs 'Paul Kipkorir Kibet' when the court quotes the Supreme Court).

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, "Busienei & 2 others v Mosbey & 5 others (Civil Application E058 of 2025) [2025] KECA 2049 (KLR)", Case Analysis (2025). Notice of motion dated 12th September 2025 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2049/eng@2025-11-27

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