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ELCDismissedNot stated in the ruling· [2026] KEELC 1786 (KLR)

Mitaboni Katani Co Ltd v Muinde & 5 others (Environment and Land Case 126 of 2019) [2026] KEELC 1786 (KLR)

High Court of Kenya
24 March 2026
NMN.A. Matheka
964 words in judgment
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The bottom line

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The High Court at Machakos refused to excuse a ten-month delay in filing an appeal because the applicant offered no proof and no draft appeal.

What this practically means

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Executive summary

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This is a ruling of the High Court at Machakos (N.A. Matheka J) on a notice of motion dated 20th December 2024 brought under Sections 1A, 1B and 79G of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Article 159 of the Constitution. The Applicant, Kalekye Kilonzo (described as an Appellant), sought leave for the firm of J.M Tamata Advocates to come on record in place of Paul Mwongela and Company Advocates, and leave to lodge an appeal out of time against a judgment delivered on 7th February 2024 striking out the plaint as res judicata. The court set out the Section 79G framework: appeals from subordinate courts to the High Court must be filed within thirty days, extendable on good and sufficient cause. Relying on Mugo v Wanjiru, Edith Gichungu Koine v Stephen Njagi Thoithi and Nicholas Kiptoo Arap Korir Salat v IEBC, the court applied the established factors: length and explanation of delay, prejudice to the respondent, and arguability of the intended appeal. The only reason offered for the delay - abandonment by previous advocates - was unsupported by any correspondence, and no draft memorandum of appeal was availed to demonstrate an arguable appeal. The court found the Applicant guilty of inordinate delay in moving some ten months after judgment, held the application unmerited, and dismissed it with costs. It so ordered on 24th March 2026.

Key legal issues

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01

Whether the Applicant satisfied the Section 79G criteria for extension of time to file an appeal out of the statutory 30-day period

Holding

The application was dismissed: the delay of over ten months from judgment (7th February 2024) to application (20th December 2024) was inordinate and unexplained, and no draft memorandum of appeal demonstrated an arguable appeal

Reasoning

The court applied Section 79G of the Civil Procedure Act and the guiding principles from Mugo v Wanjiru, Edith Gichungu Koine and Nicholas Salat: the period of and reasons for delay, prejudice to the respondent, and the arguability of the appeal. The reason offered - abandonment by previous advocates - was unsupported by any correspondence, and no draft memorandum of appeal was availed to establish an arguable appeal. The delay from February to December 2024 was inordinate and unexplained, so the equitable discretion was not exercised in the Applicant's favour.

p. 3

Legal principles established

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  • An intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal
  • Extension of time is not a right of a party; it is an equitable remedy available to a deserving party at the discretion of the court

Court orders

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  1. 1.The application dated 20th December 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 79G
  • Civil Procedure RulesOrder 51
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Mugo & Others v Wanjiru & Another
    (1970) EA 482
  • Edith Gichungu Koine v Stephen Njagi Thoithi
    (2014) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    (2013) eKLR
On appeal from
Subordinate court (not specified)
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 51 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mitaboni Katani Co Ltd v Muinde & 5 others (Environment and Land Case 126 of 2019) [2026] KEELC 1786 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1786/eng@2026-03-24

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