Mariga v Ketere & another
The bottom line
#Kenya's Court of Appeal gave a landowner a second chance to appeal after his lawyer missed the deadline, showing courts will forgive delays when litigants stay diligent.
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 applicant has satisfied the threshold for extension of time under Rule 4 of the Court of Appeal Rules
Key legal issues
#Length and explanation of delay
A delay of approximately seven months is inordinate but was reasonably explained by the applicant's former advocates' negligence and his continuous follow-up.
The court accepted that the applicant instructed advocates, funded the appeal, and repeatedly followed up by calls, messages and visits, discovering the omission only on 7 May 2026 via the case tracking system, then filing within four days. Though not flawless, the explanation sufficed in the circumstances.
Arguability of the intended appeal
Only a bona fide arguable ground need be shown; the draft grounds on forfeiture and re-entry, equitable estoppel, unjust enrichment and fair hearing were not frivolous.
The court held it need not make definitive merits findings at this stage. Upon perusing the draft Memorandum of Appeal, the issues concerning forfeiture, re-entry, equitable estoppel, unjust enrichment and the right to a fair hearing deserved consideration by the Court.
Prejudice to respondents
Any prejudice to the respondents could be compensated by costs, whereas refusal would permanently deny the applicant appellate recourse.
The respondents argued litigation must end and delay would prejudice enjoyment of the judgment's fruits. The court was not persuaded the prejudice could not be compensated by costs, and weighed the principle that disputes should where possible be determined on their merits.
Legal principles established
#- Extension of time under Rule 4 is an equitable remedy, not a right; the applicant bears the burden of explaining the delay, showing arguability and absence of prejudice, on a case-by-case basis.
- A litigant who diligently follows up with counsel and moves the court promptly upon discovering counsel's omission may be granted extension of time despite an inordinate delay.
Court orders
#- 1.Time extended for the applicant to file and serve the Notice of Appeal within fourteen (14) days from the date of the ruling
- 2.Record of Appeal to be filed and served within the period prescribed by the Court of Appeal Rules
- 3.Costs of the application to abide the outcome of the intended 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 Appeal No. E017 of 2024 (Kilgoris MC ELC E017 OF 2024)
- 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
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.
Accordingly, the application allowed and time is extended for the applicant to file and serve the Notice of Appeal within the next fourteen (14) days from the date hereof and thereafter the Record of Appeal shall be filed and served within the period prescribed by the Court of Appeal Rules.
Costs of the application shall abide the outcome of the intended appeal.
The Court may, on such terms as it thinks just, by order, extend the time limited by these Rules or by any decision of the Court or of a superior court for the doing of any act authorized or required by these Rules whether before or after the doing of the act.
bearing in mind the principle that disputes ought, where possible, to be determined on their merits
Issues in the judgment
#Conflicting dates for the judgment below
Grammatical omission in final order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariga v Ketere & another", Case Analysis (2026). Civil Application E095 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1868/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.