Habib v Ombai & another

3. The applicant further states that owing to an inadvertent oversight in counsel's civil registry, the Memorandum of Appeal and Record of Appeal were lodged outside the stipulated period prescribed under the Court Rules. According to the applicant, the delay arose from a genuine misapprehension concerning the computation of time, the ling deadline having been erroneously calculated from the date of lodging the Notice of Appeal rather than with reference to the applicable statutory timelines. 4. The applicant contends that the delay was neither deliberate nor intended to disregard the provisions of the Court of Appeal Rules, 2022. Rather, it was an honest and excusable mistake attributable to counsel, which ought not to be visited upon an innocent litigant. He therefore urges the Court to exercise its discretion and deem the Memorandum of Appeal dated 30th July 2025 and the Record of Appeal dated 1st August 2025 as properly led within time. It is maintained that the delay is not inordinate and that this Court possesses the jurisdiction to extend time and regularize the ling in the interests of justice. 5. The applicant further contends that the respondents are unlikely to suer any prejudice should the application be allowed. On the contrary, the grant of the orders sought would facilitate the determination of the dispute on its merits and advance the broader interests of substantive justice. 6. The application is supported by the adavit of Ibrahim Stanley Ogejo, learned counsel, and a further adavit sworn by him which merely reiterate and expounds on the above averments above hence no need to rehash. 7. The application is opposed through a Replying Adavit of the 1st Respondent, Margaret Auma Ombai. She deposes that the application is devoid of merit and ought to be dismissed. She states that she is the lawful registered proprietor of Land Parcel No. Kisumu/Korando/4212 and recounts the history of the dispute, maintaining that the applicant's claim to the suit property arose from an unlawful and irregular amalgamation of land parcels which was subsequently impugned and rectied by the Land Registrar. She further depones that following the dismissal of her claim by the trial court, she successfully appealed to the Environment and Land Court, where E. Asati J delivered judgment on 29th May 2025 in her favour, arming the validity of her title and setting aside the decision of the trial court. 8. She contends further that although the applicant lodged a Notice of Appeal, he failed to institute the appeal within the prescribed timelines and has not advanced sucient reasons to warrant the exercise of this Court's wide and unfettered discretion in his favour. She terms the explanation founded on inadvertence and miscalculation of timelines as inadequate, maintains that extension of time is an equitable remedy available only to deserving litigants, and asserts that the intended appeal lacks merit. She further state that allowing the application would occasion her prejudice by further delaying enjoyment of the fruits of the judgment delivered in her favour after protracted litigation spanning several years. Consequently, she urges the Court to nd that the application constitutes an abuse of the court process and to dismiss it with costs. 9. The applicant, further in support of the application, led written submissions in which he submits that the Court ought to exercise its discretion under Rule 4 of the Court Rules and regularize the ling of the appeal documents. Counsel argued that the delay was neither inordinate nor deliberate and was occasioned by an inadvertent mistake in the computation of time. Reliance was placed on the decision in Philip Kiptoo Chemwolo & another v Augustine Kubende [1986] eKLR for the principle that a litigant should not be punished for the bona de mistake of counsel. Further reliance was placed on Alphonse Kondi Riaga v Commissioner for Cooperative Development [2016] eKLR, which cited Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, for the proposition that the law should be applied in a manner that aords parties a reasonable opportunity to be heard. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1745/eng@2026-09-21 2

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10. The applicant also cited Edith Gichugu Koine v Stephen Njagi [2014] eKLR, where the Court held that a delay that is not inordinate and which causes no prejudice to the respondent may warrant the grant of an extension of time. Counsel therefore contended that the short delay was excusable, that no prejudice would be occasioned to the Respondents, and that the interests of justice and the right to a fair hearing under Article 50(1) of the Constitution favoured the grant of the orders sought. 11. The 1st respondent, in opposing the application, also led written submissions in which she submitted that the applicant had failed to satisfy the well-settled principles governing the exercise of the Court’s discretion under Rule 4 of the Court of Appeal Rules. Relying on the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, counsel submitted that extension of time is an equitable remedy, not a right, and that an applicant bears the burden of providing a satisfactory explanation for the delay, demonstrating absence of prejudice, and showing that the application was brought without undue delay. 12. Counsel further relied on M. Wambora & 9 Others v Spire Properties (K) Limited & 50 Others [2023] KESC 12, where the Supreme Court declined to extend time on the basis that the reasons advanced for the delay were unsatisfactory, emphasizing that bare and unpersuasive explanations do not warrant the Court’s indulgence. It was submitted that the explanation oered by the applicant similarly failed to meet the requisite threshold. 13. The 1st respondent also cited Karinga Gaciani & 11 Others v Ndege Kabibi Kimanga & Another Civil Application No. E004 of 2023, for the principle that the mistake of counsel is not an automatic justication for extension of time and that litigants have an independent duty to demonstrate diligence and active follow-up of their cases. Counsel therefore contended that the delay disclosed indolence on the part of both counsel and client and did not merit the Court’s equitable discretion. Accordingly, the Court was urged to nd that no sucient cause had been established and to dismiss the application with costs. 14. This is an application brought under Rule 4 of the Court of Appeal Rules, seeking the Court’s discretion to deem the Memorandum of Appeal and Record of Appeal as duly led within time. The jurisdiction of a single Judge of this Court to extend time is donated by Rule 4, which grants the Court an unfettered discretion to extend time for the doing of any act authorized or required by the Rules, upon such terms as the Court may deem just. 15. The principles governing the exercise of that discretion were succinctly set out in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, where the Court held that in considering whether or not to extend time, the Court takes into account, inter alia, the length of the delay, the reason for the delay, the chances of success of the intended appeal and the degree of prejudice that may be occasioned to the respondent if the application is granted. These principles have since been consistently applied and rearmed by the Court in numerous decisions. Having considered the application, the adavits on record and the rival submissions by the parties, the issue falling for determination is whether the applicant has laid a sucient basis for the exercise of this Court's discretion in his favour to extend time. 16. The applicant attributes the delay in ling the appeal documents to an inadvertent error in the computation of time by counsel. It is common ground that a Notice of Appeal was led within the prescribed period and that the applicant thereafter took steps towards obtaining certied copies of the proceedings and judgment. The explanation advanced is that counsel mistakenly miscalculated the applicable timelines, resulting in the late ling of the Memorandum of Appeal and the Record of Appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1745/eng@2026-09-21 3

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17. While the 1st respondent argues that the explanation is insucient and that the mistake of counsel should not automatically attract the Court's discretion, it is evident that the delay complained of was relatively short and has been satisfactorily explained. There is nothing on record to suggest that the omission was deliberate, contumelious or intended to obstruct the course of justice. The Court has on numerous occasions held that, where a plausible explanation is oered, a genuine mistake of counsel may constitute a sucient basis upon which the Court may exercise its discretion, particularly where the delay is not inordinate. 18. I am further not persuaded that any irreparable prejudice would be occasioned to the Respondents if the application were allowed. Any inconvenience suered can adequately be compensated by an award of costs. On the other hand, denial of the orders sought would have the eect of permanently, shutting the applicant out from the appellate process without the intended appeal being heard on its merits. 19. Without making denitive ndings on the merits of the intended appeal, I am satised that the applicant has demonstrated sucient cause to warrant the exercise of the Court's discretion. Taking into account the length of the delay, the explanation oered, the absence of demonstrable prejudice to the Respondents and the interests of substantive justice, I nd that the applicant has made out a proper case for the grant of the orders sought. 20. Accordingly, I would allow the application and order that the Memorandum of Appeal dated 30th July, 2025, and the Record of Appeal dated 1st August, 2025, be and are hereby deemed as duly led upon payment of the requisite fees, if any. The costs of the application shall however be paid to the respondent. DATED AND DELIVERED AT KISUMU THIS 21ST DAY OF SEPTEMBER, 2026. ASIKE MAKHANDIA ………………………………… 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/2026/1745/eng@2026-09-21 4

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