Mbulo & another v Nyamwaya (Civil Application E158 of 2025) [2026] KECA 763 (KLR)
The bottom line
#Kenya's Court of Appeal gave two landowners more time to appeal after their lawyer's departure delayed their filing, ruling the 41-day delay was explainable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted extension of time to file and serve the Notice of Appeal and Record of Appeal out of time
- 2.Whether the delay of 41 days was inordinate and adequately explained
- 3.Whether the respondent would suffer prejudice if the extension is granted
- 4.Whether the intended appeal is frivolous or raises arguable issues
Key legal issues
#Principles governing extension of time under Rule 4
The discretion is unfettered but must be exercised judiciously, considering the period of and reasons for delay, prejudice to the respondent, and public importance.
The court restated the Salat and Wanjohi Mathenge principles: extension of time is an equitable remedy available only to a deserving party, with the burden on the applicant to lay a basis to the court's satisfaction. The applicant must also show the application was brought without undue delay and that the respondent will not suffer prejudice.
Blame attributed to advocate for delay
While a litigant cannot simply blame counsel, in this case the applicants were not to blame: they followed up on the appeal and moved to court within two months of judgment.
The court acknowledged that mistake of counsel does not of itself cure a litigant's inaction, and no letter of instruction was presented. However, the applicants demonstrated interest by following up within two months, so the delay of 41 days was found not inordinate and adequately explained.
Merits of intended appeal
A single Judge should not determine with finality whether an intended appeal has merit; it suffices that the appeal is not a mere frivolity.
Relying on Leiyagu v IEBC and Athuman Nasura Juma, the court held that the question whether the intended appeal has merit is not an issue to be determined with finality by a single Judge in an extension-of-time application.
Prejudice to respondent
No earth-shattering prejudice would be suffered by the respondent, who was not in occupation of the suit property.
The applicants and their families had lived and made their livelihoods on the suit property since the 1970s, while the respondent was not in occupation. The very attempt at eviction demonstrated the applicants were on the land, and eviction would render a successful appeal nugatory.
Legal principles established
#- Under Rule 4 of the Court of Appeal Rules, the Court has an unfettered discretion to extend time, but it must be exercised judiciously, guided by the length of and reasons for delay, prejudice to the respondent, and whether the matter raises issues of public importance.
- A litigant bears primary responsibility for following up their case and cannot simply blame their advocate for all transgressions in the conduct of litigation.
Court orders
#- 1.Leave granted to the applicants to file and serve the Notice of Appeal within 14 days from the date of the ruling
- 2.Leave granted to the applicants to file and serve the Record of Appeal within 14 days from the date of the ruling
- 3.Costs to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court (ELC), Migori
- Migori ELC No. E003 of 2023
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022 (extension of time by a single Judge)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicants are therefore, in my view are deserving of the orders sought, to the extent that leave is granted to the applicants to file and serve the Notice of Appeal, and the Record of Appeal, within 14 (Fourteen) days from the date of this ruling. The costs shall abide the appeal.
The discretion under Rule 4 is unfettered, but it has to be exercised judiciously, not on whim, sympathy or caprice.
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation.
The delay has been adequately explained, and I do not consider it inordinate and the applicants herein, have made the present application without undue delay
Issues in the judgment
#Spelling of the Wanjohi Mathenge/Mathane case name is inconsistent within the judgment (Mathane/Mathenge vs Mathenge/Gichare/Gichane), appearing as two distinct entries.
Coram date discrepancy: the application was dated and the copy certified, with delivery stated as 24th April 2026, while the narrative refers to the application of 24th November 2025; the year of delivery (2026) post-dates events and the certification suggests a copy rather than the original.
Text contains OCR-style errors ('efiect', 'sufier', 'ofice').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbulo & another v Nyamwaya (Civil Application E158 of 2025) [2026] KECA 763 (KLR)", Case Analysis (2026). Notice of Motion dated 24th November, 2025 (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/763/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.