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Court of AppealDismissedMotion on notice dated 25th March 2025 (arising from Machakos ELC Case No. 412 of 2012)

Nkaangi v Kilonzi & 3 others (Civil Application E193 of 2025) [2025] KECA 2064 (KLR)

Court of Appeal of Kenya
5 December 2025
981 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 refused a landowner permission to appeal seven years late, because he gave no credible reason for the long delay.

What this practically means

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Executive summary

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The applicant, Kimiti Ole Nkaangi, moved the Court of Appeal (sitting as a single judge) under Rule 4 of the Court of Appeal Rules and Sections 1A, 1B and 3A of the Appellate Jurisdiction Act for leave to lodge a Notice of Appeal out of time against a judgment delivered by Angote J in Machakos ELC Case No. 412 of 2012 on 13th April 2018. The application, supported by an affidavit of his advocate Peter O Ngoge, explained that the applicant was not notified of the judgment and that the advocate came on record in September 2018. The respondents did not respond despite service. The court applied the well-established four-factor test from Leo Sila Mutiso v Rose Hellen Wangari Mwangi as adopted in Mwangi v Kenya Airways Limited: length of delay, reason for delay, arguability, and prejudice. The delay of about seven years was found inordinate. The reasons offered were deemed implausible: the applicant's advocates on record for five months after judgment took another seven years to move, the applicant did not state when he learned of the judgment, unanswered letters seeking instructions supported an inference of lost interest, and the Certificate of Delay relied on related to a different ruling. Arguability could not be determined by a single judge, and no prejudice from refusal was demonstrated. The motion was dismissed in its entirety with no order as to costs. The decision below was not disturbed; this ruling concerns only the extension-of-time application.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted leave to lodge a Notice of Appeal out of time under Rule 4 of the Court of Appeal Rules
  2. 2.Whether the delay of about 7 years has been satisfactorily explained
  3. 3.Whether the intended appeal is arguable
  4. 4.Whether the respondent would suffer prejudice if the extension were granted

Key legal issues

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01

Whether the delay of approximately 7 years was satisfactorily explained

Holding

The delay was inordinate and unexplained; reasons given (lack of notification of judgment) were implausible given the applicant's silence to his former advocates' correspondence and the 7-year gap after new advocates came on record

Reasoning

The court found that even accepting the applicant came on record five months after judgment, no explanation existed for the further seven years. Correspondence from former advocates seeking instructions went unanswered, from which the court inferred loss of interest. The Certificate of Delay relied on related to a different ruling (5th July 2019) and was inapplicable. The delay was therefore not sufficiently explained.

p. 2
02

Whether the intended appeal was arguable

Holding

The single judge declined to determine arguability, holding that this cannot be decided sitting as a single judge on such an application

Reasoning

The judge stated he could not make a determination on the arguability of the intended appeal while sitting as a Single Judge and therefore declined to delve into that factor further.

p. 3
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Prejudice to the applicant if the motion were refused

Holding

The applicant failed to demonstrate any prejudice he would suffer if the motion was not allowed

Reasoning

On the fourth Rule 4 factor, the court found the applicant had not satisfied it of the prejudice he stood to suffer should the motion fail, so this factor did not favour the extension.

p. 3

Legal principles established

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  • The decision to extend time under Rule 4 is discretionary and guided by four factors: length of delay, reason for delay, arguability of the appeal, and prejudice to the respondent
  • Although the Rule 4 discretion is wide and unfettered, it must be exercised judiciously

Court orders

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  1. 1.The applicant's motion dated 25th March 2025 is dismissed in its entirety
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

null

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On appeal from
Environment and Land Court
Machakos ELC Case No. 412 of 2012
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and Sections 1A, 1B and 3A of the Appellate Jurisdiction Act (single judge jurisdiction to extend time)

Relief refused

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Leave to lodge a Notice of Appeal out of time

The delay of about 7 years was inordinate and the reasons offered were not reasonable or plausible; the principles for extension of time were not satisfied

p. 3

Costs

No order as to costs

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 applicant has not demonstrated and satisfied the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time.
p. 3Failure to satisfy Rule 4 principles
the applicant's motion dated 25th March 2025, is without merit and the same is hereby dismissed in its entirety with no order as to costs.
p. 3Final orders - dismissal
There has therefore been a delay of about 7 years, which delay is no doubt inordinate.
p. 2Inordinate delay
the only logical inference that can be inferred is that the applicant had lost interest in the matter.
p. 2Inference of loss of interest

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, "Nkaangi v Kilonzi & 3 others (Civil Application E193 of 2025) [2025] KECA 2064 (KLR)", Case Analysis (2025). Motion on notice dated 25th March 2025 (arising from Machakos ELC Case No. 412 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2064/eng@2025-12-05

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