Nairobi City County v Kariobangi Sewerage Farmers Self-help Group 1st Respondent Merab Anyango Poche & 2 others

2. The background to the application is straightforward. Judgment in the ELC was delivered on 20th June 2024. The applicant states that it only became aware of that judgment approximately two months later, upon making inquiries with its then advocates on record. 3. Being dissatisfied with the outcome of the judgment, the applicant instructed new counsel, Messrs. A.A. Khalif Advocates LLP, to take over conduct of the matter with a view to lodging an appeal. According to the applicant, there was delay in retrieving the file from the former advocates on record, with the result that the applicant was only able to assess the matter and take the necessary procedural steps in December 2024. 4. The applicant maintains that the intended appeal raises arguable issues and has high prospects of success. 5. The application is uncontested. The respondents have neither filed a replying affidavit nor submissions. Determination 6. The question falling for determination is whether the applicant has satisfied the threshold for the exercise of this Court’s discretion under Rule 4 of the Court of Appeal Rules, 2022. 7. Rule 4 vests in this Court wide and unfettered discretion to extend time limited by the Rules or by any decision of the Court. However, that discretion, though unfettered, must be exercised judicially and on well- established principles. 8. The locus classicus on the exercise of that discretion remains L Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, where the Court stated that the factors to be considered include:the length of the delay;the reason for the delay;the chances of the intended appeal succeeding; andthe degree of prejudice to the respondent. 9. Those principles have been consistently reiterated by this Court. In Fakir Mohamed v Joseph Mugambi & 2 Others, the Court emphasized that although the discretion under Rule 4 is unfettered, an applicant must nonetheless place before the Court sufficient material upon which the Court can properly exercise that discretion. 10. The Supreme Court also articulated the guiding principles governing extension of time in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, emphasizing that extension of time is not a right but an equitable remedy available only to a deserving party who has laid a satisfactory basis for the exercise of the Court’s discretion. 11. More recently, the Court of Appeal has reaffirmed these principles. In Imbisi v Kakamega & 2 Others [2024] KECA, the Court reiterated that Rule 4 empowers the Court to extend time “on such terms as it thinks just,” provided that the applicant demonstrates a satisfactory explanation for the delay. 12. Similarly, in Murimi v Kabiru & 2 Others [2025] KECA, the Court emphasized that an applicant seeking extension of time must place before the Court a plausible and satisfactory explanation for the delay, without which the Court cannot properly exercise its discretion. 13. Regarding the explanation for the delay, the applicant explains that the delay arose from the fact that it was not informed by its former advocates of the delivery of judgment and only became aware of the same two months later upon making inquiries. 14. The applicant further states that upon becoming aware of the judgment it instructed new counsel to take over conduct of the matter. However, there was delay in retrieving the file from the former advocates, which hindered the new advocates from taking the necessary steps immediately. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/444/eng@2026-03-06 2

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15. The Court has long recognized that in appropriate circumstances a litigant ought not to be unduly penalized for the mistakes of counsel. In Belinda Murai & 9 Others v Amos Wainaina, the Court observed that “a mistake is a mistake… the door of justice is not closed because a mistake has been made by a lawyer.” Likewise, in Philip Chemwolo & Another v Augustine Kubende, the Court emphasized that blunders will occur from time to time and it does not follow that because a mistake has been made a party should be shut out from having his case determined on the merits. 16. On the question whether the delay is inordinate, under Rule 77(2) of the Court of Appeal Rules, 2022, a notice of appeal must be lodged within fourteen (14) days of the decision intended to be appealed against. 17. In the instant case, judgment was delivered on 20th June 2024, while the present application was filed on 13th March 2025, representing a delay of approximately nine months. Whether delay is inordinate depends on the circumstances of each case. In Mukabi v Mukabi [2004] KECA 100 (KLR), the Court accepted that explanations grounded in practical realities may justify delay. Likewise, in Anastasius H. Kamau v Karen Insurance Brokers Limited, the Court held that a delay of three months was not necessarily inordinate where a satisfactory explanation had been ofiered. 18. In the circumstances of this case, and bearing in mind the explanation ofiered by the applicant regarding the delay in learning of the judgment and retrieving the file from former counsel, I am not persuaded that the delay of about nine months can properly be described as inordinate. 19. On the prospects of the intended appeal, the applicant has also asserted that the intended appeal has high prospects of success. However, it is well settled that a single judge exercising jurisdiction under Rule 4 does not determine the merits of the intended appeal. As this Court stated in Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] eKLR: “ …this Court has to be careful to ensure that whether the intended appeal has merit or not is not an issue to be determined with finality by a single Judge.” 20. Suffice it to say that at this stage nothing definitive can be said regarding the merits of the intended appeal. 21. Considering the length of the delay, the explanation ofiered, and the fact that the application is unopposed, I am satisfied that the applicant has laid a proper basis upon which this Court may exercise its discretion under Rule 4 of the Court of Appeal Rules, 2022. 22. Accordingly, the application dated 13th March 2025 is allowed. 23. The applicant shall file and serve the appeal within fourteen (14) days from the date of this ruling. 24. The costs of the motion shall be in the intended appeal. DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MARCH, 2026. JAMILA MOHAMMED …………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original https://new.kenyalaw.org/akn/ke/judgment/keca/2026/444/eng@2026-03-06 3

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Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/444/eng@2026-03-06 4

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