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Court of AppealPartially AllowedNot stated in the judgment· [2026] KECA 862 (KLR)

Victoria Kamule Masinde v Rose Naliaka Kitayi & 2 others

Court of Appeal of Kenya
30 April 2026
MGM. Gachoka
809 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a late appeal filing, ruling that small paperwork mistakes like missing dates are forgivable, though stay requests need three judges.

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 Eldoret on a Notice of Motion dated 23rd March 2026 brought under rule 4 of the Court of Appeal Rules, 2022, sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution. The applicant, dissatisfied with the judgment of Nzili, J in Kitale ELC Cause No. E005 of 2022 (OS), sought leave to file and serve her record of appeal out of time, together with a stay of execution. Gachoka, JA declined to consider the stay prayer, holding it can only be determined by a three-judge bench, and confined himself to the extension-of-time application. The 1st respondent opposed, contending the application was supported by an undated affidavit, that the prayers referred to a non-existent judgment delivered on 5th November 2026, and that the delay was inexcusable. The court applied the settled rule 4 factors - the merit of the appeal, prejudice to the respondent, and the period and length of delay - as drawn from Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] eKLR. It declined to strike out the affidavit, finding the intention to date it was evident, and held the erroneous date of judgment curable under the oxygen principles and Article 159, the correct judgment having been annexed. Finding the reasons for delay explained, the decree procured and the delay not inordinate, the court allowed the Motion, directing the record of appeal to be filed and served within 14 days, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the delay in filing the record of appeal was excusable

Holding

Yes - the applicant explained the delay (late supply of the decree, obtained 9th February 2026, decree since procured), the delay was not inordinate, and the merits and absence of greater prejudice favoured leave.

Reasoning

The court applied the settled rule 4 factors: the merit of the appeal, the prejudice to the respondent, and the length of and reasons for the delay. The applicant explained that the decree was supplied late and has since been procured; the court found the reasons for delay explained and the delay not inordinate, and exercised its wide, non-exhaustive discretion in favour of the applicant.

p. 2
02

Whether procedural defects (undated affidavit; wrong date of judgment) warranted striking out the application

Holding

No - both defects were curable under Article 159 of the Constitution and the oxygen principles.

Reasoning

The affidavit was dated '23rd … 2026', leaving the month blank; the court found a clear intention to date it and declined to strike it out. The Motion's reference to a judgment 'delivered on 5th November 2026' was inaccurate, but the correct judgment (delivered 5th November 2025) had been annexed, so the error was curable and not fatal.

p. 2

Legal principles established

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  • An application for extension of time under rule 4 is determined by considering the merit of the appeal, the prejudice to the respondent, and the period and length of delay; the discretion is wide and not exhaustive.
  • An incomplete date on a supporting affidavit is a curable defect which the court may overlook in the interest of justice under Article 159 of the Constitution.
  • An error citing a wrong delivery date for the judgment is curable under the oxygen principles and Article 159 of the Constitution where the correct document has been annexed.
  • A prayer for stay of execution of a judgment from the Environment and Land Court cannot be determined by a single judge and must go to a three-judge bench.

Court orders

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  1. 1.The Notice of Motion dated 23rd March 2026 is allowed
  2. 2.The applicant shall file and serve her record of appeal within 14 days from the date of the order
  3. 3.The costs of the application shall abide the outcome of the appeal
  4. 4.The prayer for stay of execution was not considered, as it can only be determined by a three-judge bench
On appeal from
Environment and Land Court, Kitale
Kitale ELC Cause No. E005 of 2022 (OS)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159(2)(d) of the Constitution

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, "Victoria Kamule Masinde v Rose Naliaka Kitayi & 2 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/862/eng@2026-04-30

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