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Court of AppealPartially AllowedNotice of motion dated 9th October 2024 (Civil Application)· [2026] KECA 3 (KLR)

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)

Court of Appeal of Kenya
16 January 2026
1,266 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (M. Warsame, JA) on a notice of motion dated 9th October 2024 brought under rule 4 of the Court of Appeal Rules, 2022, seeking leave to file a notice of appeal out of time against the judgment of Ombwayo, J in Nakuru ELC Case No. 28 of 2019 delivered on 20th September 2024, which dismissed a land dispute over Nakuru Municipality Block 4/224 and related subdivisions. The applicant, who was an interested party in that suit, explained that counsel expected virtual delivery of the judgment because the cause list provided a virtual link and time slot, but the judgment was instead posted on the e-filing portal without notice of the change in mode of delivery; counsel only learned of it on 7th October 2024, after the 4th October 2024 deadline had expired. The 6th and 7th respondents opposed, relying on an email of 2nd October 2024 forwarding the draft decree and on alleged automated notifications. Applying the Salat principles, the court found the seven-day delay minimal and the explanation reasonable; it held that without delivery confirmation, read receipt or acknowledgment there was no proof of actual receipt of the email. Finding the intended appeal arguable as it affected claimed rights to immovable property, and holding the respondents' prejudice compensable through costs, the court allowed the application, directed filing and service of the notice of appeal within seven days, and awarded costs to the 6th and 7th respondents.

Key legal issues

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01

Length of and explanation for the delay

Holding

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.

Reasoning

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.

p. 3
02

Whether counsel had notice of the judgment via the email of 2nd October 2024

Holding

No finding of notice could be made absent proof of actual receipt of the email; there was no delivery confirmation, read receipt or acknowledgment.

Reasoning

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.

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03

Arguability and prejudice

Holding

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.

Reasoning

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

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  • 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

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  1. 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. 2.The applicant to file and serve the notice of appeal within seven (7) days from the date of the ruling
  3. 3.Costs of the application awarded to the 6th and 7th respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 4

Cases cited (2)

  • Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 6 Others
    [2014] eKLR
  • Trans Africa Insurance Company Limited v Benson Waireri & Another
    [2015] eKLR
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

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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, "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.