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Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion application dated 13th January 2026

Ngomeni Swimmers Limited v Tabu Tuva Khonde & 1 other

Court of Appeal of Kenya
19 June 2026
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to forgive an 86-day filing delay, confirming that unexplained delay and an unarguable appeal will cost you your case.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules 2022 seeking extension of time to file a Notice of Appeal and Record of Appeal against a ruling of the Environment and Land Court at Malindi delivered on 15th February 2024, by which the Applicant's reference to taxation was struck out. The Applicant's initial Notice and Record of Appeal were struck out on 24th October 2025 for having been filed out of time without leave, and the present application was filed on 19th January 2026, 86 days later. Applying the settled principles from Salat, Fakir Mohammed, Mwangi (as stated in Leo Sila Mutiso) and Chemaringo, Okong'o JA held that the Rule 4 discretion, though unfettered, must be exercised judiciously. He found the 86-day delay inordinate and unexplained, holding the Applicant guilty of laches since equity aids the vigilant. On arguability, the court found the intended appeal not arguable: the notice of objection to taxation had been filed outside the 14 days prescribed by Rule 11(1) of the Advocates Remuneration Order without leave under Rule 11(4), rendering it irregular and incapable of supporting the reference. The issue before the ELC was a pure question of law on which the Applicant had no answer. The application was dismissed with costs to the Respondents. The decision below was not disturbed; the intended appeal remains incompetent.

Key legal issues

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01

Whether the delay in seeking extension of time was inordinate and explained

Holding

The 86-day delay after the striking out was inordinate and unexplained; the Applicant was guilty of laches and undeserving of the equitable discretion

Reasoning

The Applicant's initial Notice and Record of Appeal were struck out on 24th October 2025 for being filed out of time without leave. The Applicant did not move the court immediately; the present application came 86 days later. No explanation was given for that delay. Equity aids the vigilant, and the Applicant, approaching the court for an equitable discretionary remedy, failed that standard.

p. 4
02

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable: the only issue before the ELC was a pure point of law on non-compliance with Rule 11 of the Advocates Remuneration Order, on which the Applicant had no answer

Reasoning

The notice of objection to taxation was filed outside the 14 days prescribed by Rule 11(1) of the Advocates Remuneration Order, and no leave under Rule 11(4) was obtained. In the absence of leave the notice of objection was irregular and could not support the reference, which was struck out as incompetent. The issue being one of law, the Applicant had no answer before the ELC or this Court.

p. 4

Legal principles established

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  • Rule 4 grants the Court unfettered discretion to extend time, which must be exercised judiciously, considering length and reason for delay, arguability of the appeal and prejudice to the respondent

Court orders

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  1. 1.The Applicant's Notice of Motion application dated 13th January 2026 is dismissed with costs to the Respondents
On appeal from
Environment and Land Court at Malindi
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2022

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, "Ngomeni Swimmers Limited v Tabu Tuva Khonde & 1 other", Case Analysis (2026). Notice of Motion application dated 13th January 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1177/eng@2026-06-19

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