James Macharia & Another & Another v Mohammed Nazir Khan
The bottom line
#The Court of Appeal refused to revive a 16-year-old land case because the applicants could not credibly explain their long delay, and it ordered them to pay costs.
What this practically means
#Executive summary
#Key legal issues
#The test for extension of time
The court adopted the Salat criteria: extension is an equitable remedy available to a deserving party, the applicant bears the burden of explaining the delay, and the court weighs delay, prejudice, arguability and public interest on a case-to-case basis
The court reproduced the seven Salat considerations and held that Rule 4's threshold of 'such terms as may be just' imports the interests-of-justice standard, balancing explanation for delay, prospects of success, importance of the case and prejudice. A plausible explanation is the key to the exercise; without one the discretion will not be exercised even where the appeal has merit.
Whether the applicants' explanation for the delay was plausible
The medical-incapacity explanation was doubtful because the first applicant was said to have been actively litigating during the same period, and the second applicant offered no explanation at all
The judgment was delivered 16 years before the application. The applicant attributed the delay to intensive cancer treatment abroad, but the respondent averred he was filing applications in court up to 26th April 2017, and the second applicant never pursued the case. The contradictions undermined the credibility of the explanation, which is the gateway to the discretion.
Arguability and prejudice in light of completed execution
Because the decree had been fully executed and the property transferred to a third party, there was arguably nothing left to appeal against, casting doubt on the appeal's arguability
The respondent deponed that the decree was successfully executed, the premises handed over, and the property sold and transferred to a third party after the earlier stay application was abandoned. The court treated completed execution as relevant both to prejudice and to whether the intended appeal was arguable, weighing against extension.
Legal principles established
#- Extension of time is an equitable discretion exercised in the interests of justice under Rule 4, and a plausible explanation for the delay is the key that unlocks the balancing exercise
Court orders
#- 1.The application dated 20th November 2025 for extension of time to file the record of appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court, Nakuru
- Nakuru Environment and Land Court Civil Case No. 288 of 1990
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Macharia & Another & Another v Mohammed Nazir Khan", Case Analysis (2026). Nakuru Civil Application (unnumbered on the face of the ruling; application dated 20th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/582/eng@2026-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.