Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNotice of Motion dated 23rd March 2026 (Civil Application)· [2026] KECA 1248 (KLR)

Peter Gathigi Marigi & 1 other v Sammy Arekai Sarich & 4 others

Court of Appeal of Kenya
3 July 2026
2,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal extended time to file an appeal record where delays were caused by the court registry, not the appellants themselves.

What this practically means

#

Executive summary

#
This was a single-Judge in-chamber ruling of the Court of Appeal at Nairobi, delivered by A.O. Muchelule, JA on 3rd July 2026, on a motion dated 23rd March 2026 brought under Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act. The applicants sought extension of time to file and serve the record of appeal against a judgment of the superior court in ELC Appeal No. E048 of 2024 delivered on 30th October 2025, and an order deeming the notice and record of appeal already filed as duly filed and served. The underlying dispute concerns ownership of land parcel Ngong/Ngong/31482, arising from a 2008 sale agreement; the trial court had dismissed the purchasers' claim for specific performance, but on first appeal the superior court allowed the appeal, set aside that judgment, granted specific performance, and cancelled the titles of the subsequent purchasers (the present applicants). The 1st and 2nd respondents opposed, arguing lack of a credible explanation for delay, a defective certificate of delay, lapse of the appeal under Rules 84(1) and 85(1), irregular filing without leave, and prejudice as successful parties unable to enjoy the fruits of judgment due to subsisting status quo orders. Applying the principles in Leo Sila Mutiso, Fakir Mohamed and Stanley Kang'ethe Kinyanjui, the Judge found the delay attributable to the registry's preparation of proceedings and correction of the certificate of delay, an arguable appeal disclosed, and the respondents' prejudice mitigated by preservation orders. The motion was allowed and the applicants were ordered to bear its costs. This interlocutory decision does not disturb the superior court's judgment; its binding guidance lies in its restatement of the Rule 4 discretion factors.

Key legal issues

#
01

Length and explanation of delay

Holding

The delay was satisfactorily explained; it arose from the registry's delay in preparing proceedings and correction of a defective certificate of delay, not from the applicants' indolence

Reasoning

The Judge found the notice of appeal was filed promptly on 4th November 2025 and proceedings requested on 31st October 2025, but proceedings were only ready on 30th January 2026, with a certificate of delay issued 13th February 2026 and reissued 5th March 2026 after correction. Service of the request letters was demonstrated by affidavits of service. Contested evidentiary disputes over receipt of correspondence could not be resolved at the interlocutory stage absent clear evidence of bad faith.

p. 4
02

Arguability of the intended appeal

Holding

The seventeen grounds in the memorandum of appeal, including challenges to the rescission finding and the retrospective application of the Land Act, 2012, disclosed substantial and bona fide questions warranting consideration by the full Court

Reasoning

Although the applicants did not expressly address arguability in submissions, the Court was entitled to derive it from the annexed memorandum of appeal. The grounds challenging whether the contract was lawfully rescinded and the retrospective application of the Land Act, 2012 were held to be non-frivolous questions of law and fact meriting the full Court's consideration.

p. 4
03

Prejudice to the parties

Holding

The respondents' prejudice as successful parties was real but substantially mitigated by subsisting status quo orders, and did not outweigh the interests of justice in sustaining the right of appeal

Reasoning

The respondents, as successful parties in the superior court, were unable to execute the judgment because of status quo orders in Civil Application No. E736 of 2025 restraining transfer of the suit property. That prejudice, however, was mitigated by the preservation orders themselves, while the applicants would be shut out from an appeal raising substantial proprietary and statutory-interpretation questions if the application were refused.

p. 4

Legal principles established

#
  • The discretion under Rule 4 is unfettered but must be exercised judicially, considering the length of delay, the explanation for the delay, the arguability of the intended appeal, and the prejudice likely to be suffered by either party
  • Delay attributable to the registry's preparation of proceedings and correction of a certificate of delay is not the applicant's indolence and does not defeat an extension of time

Court orders

#
  1. 1.The time limited for filing and serving the record of appeal is extended
  2. 2.The record of appeal already on record is deemed as duly filed and served
  3. 3.The applicants shall bear the costs of the motion
On appeal from
Superior court (Environment and Land Court, on first appeal)
ELC Appeal No. E048 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Gathigi Marigi & 1 other v Sammy Arekai Sarich & 4 others", Case Analysis (2026). Notice of Motion dated 23rd March 2026 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1248/eng@2026-07-03

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