Nderitu v Kihara & 3 others (Civil Application E074 of 2025) [2025] KECA 2120 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2120 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CIVIL APPLICATION E074 OF 2025 S OLE KANTAI, JA NOVEMBER 28, 2025 BETWEEN MARY NJERI NDERITU ........................................................................ APPLICANT AND MARY NJOKI KIHARA ............................................................... 1ST RESPONDENT JAMES MWAI KIHARA ............................................................... 2ND RESPONDENT JACKSON MUTURI KIHARA ................................................... 3RD RESPONDENT NANCY GATHONI KIHARA ..................................................... 4TH RESPONDENT (An application for leave to lodge and file Notice of Appeal out of time against the Ruling of the Environment and Land Court at Nanyuki (K. Bor, J.) delivered on 20th August, 2024 in E.L.C. Misc. Case No. E001 of 2024) RULING 1. The applicant, Mary Njeri Ndiritu applies by Motion brought under rule 4 of the Court of Appeal Rules and all other enabling provisions of law that I grant her leave to lodge and file Notice of Appeal out of time against the ruling dated 20th August, 2024 at Environment and Land Court (ELC) at Nanyuki in ELC Misc. Case No. E001 of 2024; that the draft Notice of Appeal be deemed as duly filed within time. In grounds in support of the application and in her supporting affidavit she says that delay in lodging an appeal was occasioned by a mix-up which occurred during transmission of copies of the ruling from the Court to the applicant for instructions to appeal; that the application has been brought without delay which delay is excusable; that the applicant has an arguable appeal and that the respondent would not be prejudiced if I allowed the application. There is no replying affidavit and I have seen hearing notice dated 31st October, 2025 served to nderikiingatiadvocate@yahoo.com and osorocatherine@gmail.com where parties were notified of hearing date and required to do certain things within specified timelines. I have not seen any submissions by either side. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2120/eng@2025-11-28 1
page 1 of 2
2. The principles that govern exercise of discretion to extend time for the doing of any act under our rules were well captured in the oft-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi Civil Application No. NAI 255 of 1997 as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted." 3. The applicant here says that there was a mix-up when copies of the ruling delivered on 20th August, 2024 were being transmitted. I am not sure that I understand what this means. I also note that the Motion is dated 23rd April, 2025, a period of about 8 months after the said ruling was delivered. I have not been told why that period elapsed before the applicant decided that she wanted to appeal. There is inordinate delay which is not explained. I have not been availed any material to know what the dispute was about and whether there are any chances of the proposed appeal succeeding. Being of that view I am unable to exercise my discretion in the applicant’s favour and I dismiss the application with no order on costs. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2120/eng@2025-11-28 2
page 2 of 2