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ELCDismissedCivil Miscellaneous Application (notice of motion dated 24th February 2026), arising from Busia CMC ELC No. E005 of 2025· [2026] KEELC 4312 (KLR)

Sirimba v Okutoi & 4 others (Miscellaneous Application E004 of 2026) [2026] KEELC 4312 (KLR)

High Court of Kenya
2 July 2026
2,293 words in judgment
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The bottom line

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A Kenyan court dismissed an extension-of-time application because the applicant failed to attach the pleadings and ruling being appealed, making the application fatally defective.

What this practically means

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Executive summary

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The applicant, plaintiff in Busia CMC ELC No. E005 of 2025 concerning land parcel Marachi/Esikoma/1492, moved the High Court at Nyahururu by notice of motion dated 24th February 2026 seeking leave to file an appeal out of time against the trial court's ruling of 22nd January 2026, which had dismissed her application for a temporary injunction, and seeking a further injunction pending the intended appeal. The applicant attributed the delay of about one week to financial difficulties, logistical constraints and late instructions to counsel, relying on Salat v IEBC for the extension-of-time principles, and argued that the intended appeal was arguable and that no prejudice would befall the respondents. The respondents opposed, contending the application was incompetent, that the appeal was against a negative order incapable of appeal, that the delay was unexplained, and that the injunction sought would duplicate relief still pending before the lower court and usurp the trial court's role. The court identified the sole issue as whether the applicant had made out a case for the orders sought. It accepted that the delay was not inordinate but held that the applicant's failure to annex the pleadings and the ruling appealed from rendered the application fatally defective, since the court could not determine whether the intended appeal was arguable or entertain the injunction pending appeal. The notice of motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the applicant met the requirements for leave to appeal out of time

Holding

The application was dismissed because, although the delay was not inordinate, the applicant failed to annex the pleadings and the ruling appealed from, leaving the court unable to assess whether the intended appeal was arguable

Reasoning

The court applied the established extension-of-time principles (Salat; Leo Sila Mutiso; Thuita Mwangi), which require consideration of the length of and reason for delay, arguability of the intended appeal and prejudice to respondents. Arguability could not be assessed because the applicant did not annex the plaint, pleadings and ruling; indeed the plaint disclosed no basis for the reliefs sought. The burden of disclosing material rests on the applicant, and failure to do so was fatal.

p. 5
02

Whether the applicant was entitled to an injunction pending appeal

Holding

The injunction was refused because the arguability of the intended appeal could not be determined on the material placed before the court

Reasoning

An injunction pending appeal presupposes an arguable intended appeal. Since the applicant failed to annex the pleadings and ruling underpinning the intended appeal, the court had no basis to evaluate arguability, and the injunction application necessarily failed with the extension-of-time application.

p. 5

Legal principles established

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  • An applicant seeking leave to appeal out of time must satisfy the court, among other factors, that the intended appeal is arguable, and must place before the court the material (including the pleadings and ruling appealed from) necessary to assess arguability

Court orders

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  1. 1.The applicant's notice of motion dated 24th February 2026 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Court of Appeal Rules (Cap. 9 sub-leg)Rule 4

Cases cited (8)

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014)
  • Odongo v Kamadi (Civil Miscellaneous Application E035 of 2025)
    (2026) KEHC 2129 (KLR) (12 February 2026) (Ruling)
  • Mbukoni Services Limited and another v Mutinda Reuben Nzili & 3 Others
    H.C at Machakos Misc. App No E077 of 2021
  • Leo Sila Mutiso v Helen Wangari Mwangi
    Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231
  • Thuita Mwangi v Kenya Airways Ltd
    [2003] eKLR
  • Kenya Commercial Bank Ltd v Tamarind Meadows Ltd & 7 Others
    [2016] eKLR
  • Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, Muthomi & Co. Advocates & 2 Others
    [2022] KECA 491 (KLR)
  • Joseph Ntombura v Godfrey Simiyu & 4 Others
    [2018]
Jurisdiction invoked
Inherent jurisdiction over leave to appeal out of time (Section 79G of the Civil Procedure Act discussed); application for leave to file appeal out of time and injunction pending appeal

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, "Sirimba v Okutoi & 4 others (Miscellaneous Application E004 of 2026) [2026] KEELC 4312 (KLR)", Case Analysis (2026). Civil Miscellaneous Application (notice of motion dated 24th February 2026), arising from Busia CMC ELC No. E005 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4312/eng@2026-07-02

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