Hilda Mwihaki Karanja v Geoffrey Mwangi Issac & 6 others

2025 by Gicheru J, in Murang’a ELC Case No. 28 of 2022. A notice of appeal was filed on 4th February, 2025 and served by 7th February, 2025. The applicant attributes the reasons for delay to her previous advocate’s failure to file the record and memorandum of appeal on time. The applicant also states that she had to settle outstanding balances with those advocates before the files were released to her to transfer to her new legal counsel. 3. The applicant deposes that the appeal raises substantial arguable questions and the respondent will not suffer prejudice if the extension of time is granted. 4. A summary of the underlying dispute is that the original suit involved a land dispute over parcel No. Makuyu/Kimorori/Block/144 owned by the plaintiff and Makuyu/Kimorori/Block/IV/384 owned by the 1st defendant Geoffrey Mwangi Issac. The High Court dismissed the plaintiff’s suit, making a finding that the suit was primarily a boundary matter which should have been referred to the Land Registrar for determination under the Land Registration Act. The court allowed the defendant’s counterclaim declaring him the legal owner of this parcel before its subdivision, and directed the parties to bear their own costs. 5. The applicant filed submissions dated 30th June, 2026 through the firm of Njui Kariuki and Company Advocates, urging that the appellant is an old widow with no reliable income and restricted movement. That her son followed up with the previous advocate on record to clear their balance before they could retain another advocate to represent them. For that reason, the appeal was not lodged within the given time. The new advocate compiled the record of appeal and prepared a memorandum of appeal which were filed on 6th June, 2025. 6. From the record it is noted that the delay in filing the Record and Memorandum of Appeal was for a period of two months and fourteen days. Over time, and in several decision of this court and the Supreme Court the provisions in rule 4 have been interpreted the parameters to guide the Court in applications of this nature are set out. 7. The applicant refers to the case of Nkorui vs Meru South Farmers’ Co-operative Society Limited [2024] KE ELC 781 (KLR), for the established principles that guide the courts when entertaining applications for extension of time. She avers that it is in the interest of justice for this Court to extend time and allow her to file and serve the Memorandum and Record of appeal. Further that no prejudice will be occasioned upon the respondents and that the appeal raises substantial questions to be determined and is therefore arguable. 8. Rule 4 of the rules of this Court’s gives the Court unfettered discretion to extend the time limited by the Rules, or by any decision of the Court, or of a superior court. The factors that the Court is required to consider in an application under rule 4 are well settled. The Supreme Court set out the principles that guide the exercise of discretion to extend time in the case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] e KLR as follows: “ … we derive the following as the underlying principles that a Court should consider in exercising such discretion: 1. extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court; 2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1485/eng@2026-07-24 2

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3. whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis; 4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court; 5. whether there will be any prejudice suffered by the respondents, if extension is granted; 6. whether the application has been brought without undue delay; and 7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 9. The discretion to extend time is indeed unfettered. It is however, incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant. In County Executive of Kisumu vs County Government of Kisumu and 8 others Civil Application No. 3 of 2016, the Supreme Court held that each case had to be determined on its own merit and all relevant circumstances considered and that there must be a satisfactory explanation for any delay. 10. Upon considering the application and the reasons advanced by the applicant, I find that there is justification to grant the prayers sought in the application for leave to file the appeal out of time. Reasons wherefore, this application is allowed. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026. L. ACHODE ................................... 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/2026/1485/eng@2026-07-24 3

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