Peter Gathigi Marigi & 1 other v Sammy Arekai Sarich & 4 others
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
#Key legal issues
#Length and explanation of delay
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
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.
Arguability of the intended appeal
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
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 The grounds challenging whether the contract was lawfully rescinded and the retrospective application of the Land Act, 2012 were held to be non-frivolous questions of law and fact meriting the full Court's consideration.
Prejudice to the parties
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
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.
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.The time limited for filing and serving the record of appeal is extended
- 2.The record of appeal already on record is deemed as duly filed and served
- 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.