Kiunge & another v Kiunge & another

or before the full Court as required under rule 5(2)(b). However, the confusion notwithstanding, I proceeded as if the application was properly made under rule 4. 4. In support of the application, the grounds on its face and in the undated supporting adavit sworn by the applicants are that the applicants were dissatised with the impugned ruling. They consequently, applied for a certied copy of proceedings for purposes of compiling a Record of Appeal and served the respondents with the letter bespeaking the proceedings. 5. The submissions dated 26th June 2026, led by the rm of M/s Karanja Maina & Co Advocates on behalf of the applicants were urged under rule 4. Learned counsel referred to the case of Sammy Mwangi Kiriethe & 2 others v Kenya Commercial Bank Ltd [2020] KECA 454 (KLR), where the Court stated that the principles upon which this Court determines an application for extension of time under rule 4 are well settled. That the Court considers: the length of the delay; the chances of success of the intended appeal; and, the degree of prejudice that would be occasioned to the respondent if the application is granted. 6. Counsel cited the case of Njuguna v Mugichu & 73 others [2003] KLR 507, where the Court stated that the discretion exercisable under rule 4 is unfettered and the main concern of the Court is to do justice between the parties. He also referred to Mongira & Another v Makori & Another [2005] 2 KLR where the Court cited Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 EA 321, which reiterated the factors set out above. He further adverted to the case of Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees [2020] KECA 761 KLR, where the Court stated that the discretion under rule 4 is exercised on behalf of the Court by a single Judge. 7. Counsel argued that this application was led 27 days after the impugned ruling and the delay is therefore, not inordinate. He submitted that they took time to apply for a certied copy of proceedings and could not lodge the Notice of Appeal in time. Further that, without delving into the subject of the appeal, it was stated that the applicants are likely to be prejudiced in respect of a land they have known to be theirs for more than sixty years, and on which they have developed permanent structures. 8. It was asserted for the applicants that the respondents will not suer prejudice if the orders sought are granted, and that the application has been brought in utmost good faith. That the applicants are elderly and are unable to provide security but are amenable to abide by the terms and conditions that the Court may grant. It’s their view that it is in the interest of justice that the application is allowed as prayed. 9. The rm of M/s Gichuki Gatumbo Advocates led the submissions dated 6th July 2026, on behalf of the respondent. Learned counsel acknowledged the jurisdiction of the Court under rule 4, and contended that the applicants had not satised the principles that guide the Court in the exercise of that jurisdiction as set out in Leo Sila Mutiso v Hellen Wnagari Mwangi (supra). 10. Counsel argued rst, that the reason for the delay in ling the Notice of Appeal has not been explained. That there is no dispute that the applicants were aware of the ruling of the court and did not move. That they only rushed to Court when the process of transmission was commenced. 11. Secondly, counsel argued that the Memorandum of Appeal has not been annexed for this Court to see the grounds relied upon in the intended appeal. That the impugned ruling was in an application where the applicants sought mandatory injunctive orders against the respondent, to refrain from interfering with land parcel No. L.R. RUGURU/GACHIKA/692 pending the hearing and determination of the Cause. That the application lacked basis and the orders sought were vague and hence, the intended appeal has no chance of success. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1696/eng@2026-09-25 2

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12. Counsel submitted that the applicants are in occupation of their respective shares as per the conrmed grant, which divided the estate in equal shares and are not going to suer any irreparable damage if the orders sought are not granted. Therefore, that the application has not met the threshold for granting the orders sought and should be dismissed with costs to the respondent. 13. Rule 4 under which an application of this nature is considered clothes the Court with the jurisdiction, to extend time, and donates a free and unfettered discretion which however, must be exercised judiciously. The guiding principles in the exercise of that discretion have been stated in numerous decisions. The locus classicus of Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), which both parties have referred to, set down the following parameters: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are: rst, the length of 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.” 14. I have considered the grounds of the application and the rival submissions to establish whether this application has met the threshold for granting the orders sought. 15. Regarding whether there are chances of the appeal (possibly) succeeding if the application is granted, this Court has been careful to ensure that whether the intended appeal has merits or not, is not an issue determined with nality by a single Judge. (See- Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] KECA 395(KLR)). However, I note that the applicants did not attach a draft Memorandum of Appeal to their application. There is therefore, no evidence that there is an intended appeal, or that it is worthy of being given a chance to be ventilated. 16. Concerning the reason for delay, the sole reason given herein is that the applicants applied for certied copies of proceedings for purposes of compiling a Record of Appeal and that this application was led 27 days after the impugned ruling. Therefore, that the delay is not inordinate. 17. Although there is no minimum or maximum period of delay prescribed by law, the applicant bears the burden of satisfactorily explaining that there is delay and that the cause of that delay is excusable as stated in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR. It is noteworthy that the applicants did not need copies of the proceedings to le a Notice of Appeal and since it is not stated that they encountered any diculty in ling the Notice of Appeal, I nd that the delay is not excusable. Consequently, the application is found to be lacking in merit and is dismissed with costs to the respondents. It is so ordered. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER 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/2026/1696/eng@2026-09-25 3

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