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Court of AppealDismissedNakuru Civil Application (unnumbered on the face of the ruling; application dated 20th November 2025)· [2026] KECA 582 (KLR)

James Macharia & Another & Another v Mohammed Nazir Khan

Court of Appeal of Kenya
17 March 2026
1,347 words in judgment
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The bottom line

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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

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Executive summary

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The applicants sought leave under Rule 4 of the Court of Appeal Rules, 2022 and sections 3A and 3B of the Appellate Jurisdiction Act to file their record of appeal out of time against a judgment delivered on 10th May 2016 in Nakuru Environment and Land Court Civil Case No. 288 of 1990, in which the respondent was awarded Kshs.3,920,000/- including mesne profits of over Kshs.3.9 million. The applicants attributed the 16-year delay to the first applicant's intensive cancer treatment abroad and relied on the arguability of the appeal and the right to a fair hearing. The respondent opposed, deponing that notices of appeal had been filed in 2016 but no appeal followed; that an earlier application, Civil Application No. Nyeri 23 of 2017, was abandoned; that the decree had been fully executed; and that the property had been sold and transferred to a third party. The respondent further alleged the first applicant was actively litigating during the period he claimed to have been incapacitated, and that the second applicant had at all times been able to pursue the case. Mativo, JA applied the Salat criteria for extension of time, holding that extension is an equitable remedy, that a plausible explanation is the key that unlocks the balancing exercise, and that completed execution cast doubt on the arguability of the appeal. The application was dismissed with costs to the respondent.

Key legal issues

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01

The test for extension of time

Holding

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

Reasoning

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.

p. 3
02

Whether the applicants' explanation for the delay was plausible

Holding

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

Reasoning

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.

p. 4
03

Arguability and prejudice in light of completed execution

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 20th November 2025 for extension of time to file the record of appeal is dismissed
  2. 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

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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, "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.