Lagat v Nyaberi & 3 Others (Suing in their capacity as Chairman, Treasurer and Member of Ngei Tenants Welfare Association - Nakuru) & 7 others (Civil Appeal (Application) E097 of 2024) [2026] KECA 3 (KLR)
The bottom line
#Kenya's Court of Appeal let a landowner appeal late because no one could prove his lawyer actually received an email notifying him of the judgment.
What this practically means
#Executive summary
#Key legal issues
#Length of and explanation for the delay
The seven-day delay was minimal and satisfactorily explained: counsel expected virtual delivery of the judgment as indicated in the cause list, but the judgment was instead posted on the e-filing portal without notice of the change in mode of delivery.
The court found that the cause list's provision of a virtual link and time slot created a reasonable expectation of virtual delivery. Counsel learned of the judgment on 7th October 2024 upon inquiries at the registry and filed the application promptly on 11th October 2024. The delay was therefore neither inordinate nor attributable to the applicant's fault.
Whether counsel had notice of the judgment via the email of 2nd October 2024
No finding of notice could be made absent proof of actual receipt of the email; there was no delivery confirmation, read receipt or acknowledgment.
Although the respondents' advocates forwarded the draft decree by email on 2nd October 2024, the applicant filed no affidavit admitting or denying receipt. The court held that in the absence of proof of actual receipt it could not conclude that counsel had notice of the judgment while time remained to file the notice of appeal.
Arguability and prejudice
The intended appeal raises arguable issues affecting the applicant's claimed rights to immovable property, and the respondents' prejudice from delayed service was real but compensable through costs.
The court balanced the Salat factors: the appeal concerned ownership of land parcels, hence arguable; the prejudice suffered by the 6th and 7th respondents from delayed service, while real, could be addressed by an award of costs. The application was therefore allowed.
Legal principles established
#- In extension-of-time applications, the court considers the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
- Extension of time is not automatic; the applicant bears the onus of explaining the delay and showing an arguable appeal.
- Where an alleged notification of a judgment is by email, proof of actual receipt is required before the court will find that a party had notice.
Court orders
#- 1.Leave granted to the applicant to file and serve a notice of appeal out of time against the judgment delivered in Nakuru ELC Case No. 28 of 2019 on 20th September 2024
- 2.The applicant to file and serve the notice of appeal within seven (7) days from the date of the ruling
- 3.Costs of the application awarded to the 6th and 7th respondents
- On appeal from
- Environment and Land Court, Nakuru
- Nakuru ELC Case No. 28 of 2019
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 (extension of time to file a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lagat v Nyaberi & 3 Others (Suing in their capacity as Chairman, Treasurer and Member of Ngei Tenants Welfare Association - Nakuru) & 7 others (Civil Appeal (Application) E097 of 2024) [2026] KECA 3 (KLR)", Case Analysis (2026). Notice of motion dated 9th October 2024 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/3/eng@2026-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.