Kitui & 2 others v Khaemba & another
The bottom line
#Kenya's Court of Appeal allowed landowners to appeal late because serious illness explained the two-month delay and the other side showed no real harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of approximately two months was adequately explained
Yes - the 1st Applicant's serious cancer diagnosis and the death of a party representative constituted a reasonable explanation; the delay was not deliberate or due to indolence.
The medical records showed invasive acinar adenocarcinoma of the prostate with metastatic pelvic lymphadenopathy in a 73-year-old man undergoing treatment. The court held the severity of treatment and psychological impact of the diagnosis, coupled with logistical challenges from the death of a party representative, reasonably explained the two-month delay and negated indolence.
Whether the intended appeal was arguable
Yes - the draft Notice of Appeal raised arguable points of law, including lack of Land Control Board consent and intermeddling with a deceased's estate.
The Applicants argued the Judge erred in relying on a sale agreement void ab initio for want of Land Control Board consent and that the transaction violated the Law of Succession Act as intermeddling with a deceased's estate. Applying Stanley K. Kinyanjui v Tony Ketter, the court found these bona fide issues meeting the arguability threshold.
Whether the Respondent would suffer prejudice if the extension were granted
No - the Respondent remained in possession of the suit land and did not demonstrate how the appeal would irreparably harm him.
The Respondent argued he had possessed the land since 2000, but the court held prejudice must be demonstrated, not presumed. Denying the Applicants the chance to appeal would extinguish their constitutional right of access to justice under Article 50 of the Constitution.
Legal principles established
#- In a Rule 4 extension-of-time application, prejudice is not presumed and must be demonstrated by the respondent.
- An arguable appeal need not necessarily succeed; it suffices that it raises a bona fide issue deserving consideration.
Court orders
#- 1.Time extended to file and serve the Notice of Appeal out of time; Notice of Appeal deemed duly filed and served if filed within 7 days from the date of the Ruling
- 2.Applicants to have 30 days from filing the Notice of Appeal to serve the Record of Appeal
- 3.Costs of the Application to abide the outcome of the Appeal
- On appeal from
- Environment and Land Court at Bungoma
- ELC Case No. 36 of 2011 (OS)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitui & 2 others v Khaemba & another", Case Analysis (2026). Civil Application E018 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2075/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.