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Court of AppealDismissedNotice of motion dated 17th June 2025 (Civil Application under Rule 4)· [2026] KECA 205 (KLR)

County Government of Kiambu & 1 other v Teresia Nyambura Njenga

Court of Appeal of Kenya
6 February 2026
1,158 words in judgment
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The bottom line

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The Court of Appeal refused to let applicants appeal six years late because their delay was inordinate and unexplained, and costs went to the elderly respondent.

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 Nairobi by W. Karanja, JA, delivered on 6 February 2026, on a notice of motion dated 17 June 2025 in which the applicants sought extension of time to file a notice of appeal and record of appeal out of time against the judgment of Lady Justice L. Gacheru in ELC Case Number 554 of 2017 delivered on 17 May 2019. The applicants, who claimed the suit property was public land held in trust for the community, said they only learnt of the judgment when auctioneers sought to evict them, and blamed counsel for not informing them. The respondent opposed, deposing that the applicants had been represented throughout, undertook negotiations they kept retracting from, filed an unsuccessful review, and faced eviction orders before attempting to appeal six years late. The court first raised, as a threshold matter, whether a party who had pursued review under section 80 and Order 45 of the Civil Procedure Act and Rules could still appeal the same judgment, but since the review proceedings were not annexed, it considered the application on its merits. Applying the Fakir Mohammed principles under Rule 4, the court found the six-year delay inordinate and unexplained, rejected the mistake-of-counsel excuse because the applicants had instructed counsel throughout, declined to examine the prospects of the appeal, and noted prejudice to the respondent aged over 80. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether a party who pursued review can still appeal

Holding

The court expressed doubt that a party who went the review route could return to appeal the same judgment, but since the review proceedings were not annexed, it proceeded to consider the application on its merits.

Reasoning

The court raised the point as a threshold issue, reasoning that having exercised the right of review under section 80 and Order 45, the applicant could not then seek to appeal the same judgment. However, because the review application and ruling were not annexed to the replying affidavit, the court gave the applicants the benefit of the doubt and considered the extension application on its merits.

p. 2
02

Whether the six-year delay was inordinate and sufficiently explained

Holding

The delay of six years between judgment and application was inordinate by any standards, and the excuse of mistake of counsel failed because the applicants were actively aware of and involved in negotiations and review proceedings.

Reasoning

The impugned judgment was delivered on 17 May 2019 and the application filed on 17 June 2025. During that period the applicants negotiated with the respondent, retracted on promises, filed an unsuccessful review, and faced eviction orders. The mistake-of-counsel argument collapsed because counsel acted on the applicants' instructions throughout, so the applicants were aware of what was happening all along.

p. 3
03

Whether the applicants deserved the discretionary extension of time

Holding

The applicants were not deserving of the court's favourable discretion; having failed to explain the inordinate delay, the court did not need to consider whether the appeal had chances of success, and noted prejudice to the elderly respondent.

Reasoning

Applying the Fakir Mohammed factors, the court found the delay inordinate and unexplained, making it unnecessary to examine the merits of the intended appeal. It further observed that permitting an appeal six years after judgment would be prejudicial to the respondent, said to be over 80 years old. The application therefore failed to meet muster.

p. 3

Legal principles established

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  • Extension of time under Rule 4 is an unfettered discretionary exercise guided by relevant but not exhaustive factors including the period and reason for delay, chances of the appeal succeeding, and prejudice to the respondent
  • A party who has elected to seek review of a judgment cannot thereafter come to the Court of Appeal to appeal against the same judgment
  • An inordinate delay that is unexplained is fatal to an extension-of-time application regardless of the other factors

Court orders

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  1. 1.The application for extension of time to file the notice of appeal and record of appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondent
On appeal from
Environment and Land Court
ELC Case Number 554 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

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, "County Government of Kiambu & 1 other v Teresia Nyambura Njenga", Case Analysis (2026). Notice of motion dated 17th June 2025 (Civil Application under Rule 4). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/205/eng@2026-02-06

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