Mutie & 2 others v Registrar & 2 others
The bottom line
#The Court of Appeal refused to extend time for filing an appeal because the applicants delayed nearly two years without a convincing explanation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted extension of time to file and serve the Memorandum and Record of Appeal out of time
- 2.Whether the delay of about 1 year and 7 months was sufficiently explained
- 3.Whether the applicants would suffer prejudice if the application is not allowed
Key legal issues
#Whether the delay in filing the Record of Appeal was sufficiently explained
The delay of about 1 year and 7 months was inordinate and the reasons proffered were not plausible: the applicants did not disclose the filing of a fresh suit on the same subject matter, and gave no explanation for the further 8-month delay after obtaining typed proceedings.
The Court weighed the Rule 4 factors. On length, the delay from 9th October 2023 to 9th May 2025 was plainly inordinate. On reasons, the applicants' claim of diversion by multiple proceedings was undermined by their own uncontroverted non-disclosure of a fresh suit (Machakos ELC Case No. 7 of 2023) over the same property, and no explanation was given for the 8-month gap between obtaining proceedings on 24th September 2024 and filing the motion on 9th May 2025.
Whether the applicants would suffer prejudice if the application was not allowed
No prejudice would be suffered because a similar matter is already pending before the ELC Court in Machakos.
The Court found that since the applicants had filed a fresh suit (Machakos ELC Case No. 7 of 2023) challenging the same proprietary rights over the same property, refusing the extension would not leave them without a forum, and allowing the appeal could occasion contradictory orders.
Arguability of the intended appeal
The Court declined to determine arguability, holding that a Single Judge cannot make that determination.
The Court expressly declined to delve into the chances of the appeal succeeding, treating that factor as outside the competence of a Single Judge sitting under Rule 4.
Legal principles established
#- In deciding whether to extend time, the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- The Court's discretion under Rule 4 is wide but must be exercised judiciously.
Court orders
#- 1.The applicants' motion dated 9th May 2025 is dismissed in its entirety with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Machakos
- ELC Case No. 74 of 2014 as Consolidated with Petition No. 10 of 2018
- Jurisdiction invoked
- Rules 4, 42 and 47 of the Court of Appeal Rules 2010 (Single Judge jurisdiction)
Relief refused
#Extension of time to file and serve the Memorandum and Record of Appeal out of time
The delay of about 1 year and 7 months was inordinate and not sufficiently explained; no prejudice would be suffered given a similar matter pending before the ELC Court
Deeming the annexed draft Memorandum of Appeal as duly filed and served
This was consequential upon the refusal of leave to appeal out of time
Costs
Costs of the application to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the applicants’ motion dated 9th May 2025, is without merit and the same is hereby dismissed in its entirety with costs to the 1st respondent.
the matters which this Court takes into account in deciding whether to grant an extension of time are first the length of the delay. Secondly, the reason for the delay, thirdly (possibly) 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.
The Court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the Court should do so judiciously.
Ultimately, therefore, I am not satisfied that the delay herein has been sufficiently explained to the satisfaction of this Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutie & 2 others v Registrar & 2 others", Case Analysis (2025). Civil Application E289 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2308/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.