Tingo v Machera (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 1530 (KLR)
The bottom line
#A Kenyan court refused a prisoner's late appeal because he waited over a year after receiving court documents without explaining the delay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court should exercise its power to enlarge time to allow the applicant to file his appeal out of time
- 2.Question on costs of the application
Key legal issues
#Whether the court should enlarge time to allow filing of an appeal out of time under section 79G of the Civil Procedure Act
The application was declined because the delay was inordinate and unexplained; the applicant did not act promptly even after receipt of certified copies of the proceedings and judgment
The court accepted the certificate of delay showed proceedings applied for on 23rd December 2023 and received by counsel on 22nd April 2024. Yet the application was not lodged until 19th July 2025, a delay of over one year and six months after receipt. The claim of lack of communication with incarcerated counsel was rejected as inconsistent with counsel acting to extract proceedings and communicating during the trial hearing. Setting aside a judgment rendered over two years earlier without reasonable justification would prejudice the respondent.
Whether incarceration of the applicant constituted good and sufficient cause for the delay
No - the applicant failed to explain why communication with counsel was possible during the trial but impossible when the need to appeal arose
The court acknowledged that communicating with an incarcerated client may be challenging, but found the applicant did not explain the circumstances making communication possible during the lower court hearing (including virtual testimony from Naivasha Maximum Prison) yet impossible afterwards. Counsel's application for certified proceedings demonstrated the applicant was giving instructions, undermining the claim of no instructions.
Legal principles established
#- An appeal out of time may be admitted if the appellant shows good and sufficient cause; enlargement of time is discretionary and guided by the period of delay, reasons for the delay, prejudice to the respondent, and promptitude of the application
- A litigant who instructs counsel to obtain certified proceedings for appeal cannot credibly claim he could not instruct counsel to file the appeal
Court orders
#- 1.Prayer 2 of the applicant's application (leave to file an appeal out of time) is declined
- 2.The costs of the application are to be borne by the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules (inherent power to enlarge time)
Relief refused
#Leave to file an appeal out of time
The application was not filed promptly and no reasonable explanation for the delay was given; counsel received certified proceedings and judgment on 22nd April 2024 but the application was only filed on 19th July 2025
Costs of the application
Costs awarded against the applicant as the unsuccessful party
Costs
The costs of the application are to be borne by Applicant.
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.
The court therefore finds that the application was not filed promptly and there is no reasonable explanation for the delay. The upshot of the foregoing is that prayer 2 of the applicant’s application is declined.
The costs of the application are to be borne by Applicant.
If the applicant was able to instruct his advocate to extract the aforesaid certified copies for purposes of appeal while in prison, he should also have been able to instruct his advocate to file the appeal.
Given the above set of circumstances, it would be prejudicial to respondent were the court to set aside a judgment that was rendered more than two years ago, absent a reasonable justification for doing so.
Issues in the judgment
#The judgment states the trial judgment was delivered on 30th November 2023 in one place but the respondent's affidavit refers to judgment 'rendered on 30th November 2026', which the court does not resolve
Inconsistent references to the lower court case number - 'Kehancha PMC ELC No. 15 of 2015' and 'Kehancha PMC ELC No. 15 of 2019'
The court records the applicant as being at 'the Nakuru Maximum prison' whereas elsewhere the judgment and affidavits refer to Naivasha Maximum Prison
The applicant's affidavit dates for applying for and receiving proceedings (6th March 2023 and 29th March 2023) predate the judgment date of 30th November 2023; the court treated this as a typing error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tingo v Machera (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 1530 (KLR)", Case Analysis (2026). Kehancha PMC ELC No. 15 of 2015 (appeal therefrom; Notice of Motion dated 19th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1530/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.