Njeru v Nguyu

4. The respondent led a replying adavit sworn on 13th July 2026, opposing the application. He averred that the applicant was seeking an extension of time to lodge and serve a Notice of Appeal despite the prescribed period having already expired. He further averred that the applicant had not given any sucient, plausible or reasonable explanation for his failure to comply with the prescribed timelines, and that the applicant had not met the legal threshold required for this Court to exercise its discretion to extend time under Rule 4 of the Court of Appeal Rules. 5. The respondent deponed that the applicant had not provided sucient details regarding the alleged technical problem with his mobile phone. In particular, he had not stated what the problem was, when it arose, how long it persisted or what steps, if any, he took to have it resolved. Further that, the applicant had not produced any documentary evidence to support the alleged diculties in communication with his advocates, and that nothing prevented the applicant from making inquiries at the Court registry regarding the status and outcome of his matter. He emphasised that litigation ultimately belongs to the parties themselves and that every litigant has a duty to remain vigilant and take reasonable steps to follow up on the progress of his or her case. 6. He averred that the applicant had failed to demonstrate that the intended appeal was arguable. He added that the applicant had simply expressed dissatisfaction with the decision of the learned Judge without pointing to any serious error of law or principle that would justify the intervention of this Court. The respondent further averred that allowing the applicant to reopen the matter without a satisfactory explanation for the delay would unfairly deprive him of the benet of the judgment already delivered in his favour. He averred that the application was without merit and should be dismissed with costs. 7. In the supplementary adavit sworn on 15th July 2026, the applicant reiterated the contents of his supporting adavit and armed that the delay is not inordinate and no prejudice will be suered by the respondent if his application is allowed. 8. When the matter was placed before me for hearing both counsel agreed to rely on their written submissions. 9. The applicant’s submissions are dated 15th July 2026 and was led by the rm of Rose W. Njeru & Company Advocates. Learned counsel submitted that the sole issue is whether the applicant has laid a sucient basis for the Court to exercise its unfettered discretion under Rule 4 of the Court of Appeal Rules 2022. He cited the cases of Anti- Counterfeit Authority Vs. Francis John Wanyange (Nai Civil Application No. 147 of 2019), Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi (1999) EA 23l, Nicholas Kiptoo Arap Korir Salat v IEBC [2014] eKLR and Fakir Mohamed v Joseph Mugambi Civil Application No. NAI.332 of 2004, on the principles governing the exercise of that discretion which include; 10. (i) length of delay, (ii) reason for delay, (iii) chances of success of the intended appeal, and (iv) degree of prejudice. Learned counsel further submitted that the delay was neither deliberate nor inordinate. That the applicant was unaware of the judgment due to phone technical problems disrupting their communication and he only learnt of the judgment on 19th June 2026. He consulted his family thereafter, instructed her on 24th June 2026 and she led the application on 1st July 2026 a mere twelve https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1768/eng@2026-09-25 2

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days from the date of actual knowledge. She insisted that that demonstrated diligence not delay and that the draft Memorandum of Appeal raises bona de questions of law. 11. She contended that the respondent had not demonstrated the prejudice he would suer and that granting the extension merely enables exercise of a statutory right of appeal and does not predetermine the Appeal's merits. Further, that any loss to the respondent is compensable in costs, whereas refusal would permanently and irreversibly shut the applicant out of Court. Invoking Articles 48, 50, and 159(2)(d) of the Constitution, the applicant asserted that substantive justice decisively favours granting the extension over rigid adherence to procedural technicality. 12. In conclusion, learned counsel submitted that sucient cause has been demonstrated to warrant the Court's discretion in his favour. He urged the Court to allow the application and deem the annexed Notice of Appeal duly lodged/served upon payment of fees and direct that costs abide the outcome of the appeal. 13. The respondent’s submissions are dated 14th July 2026 and were led by the rm of Guantai & Associates. Learned counsel contended that the applicant has failed to meet the legal threshold required for the Court to exercise its discretion under Rule 4 of the Court of Appeal Rules, 2022. He argued that the said discretion is not automatic, it must be exercised judicially guided by settled principles and only where the applicant has laid a sucient basis. He cited the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat Vs. IEBC & 7 Others (supra) and asserted that extension of time is an equitable remedy, not a right and the burden lies squarely on the applicant to provide a reasonable explanation for the delay, having due regard to any prejudice that may be occasioned to the respondent. 14. On the question of delay, learned counsel placed reliance on the case of Kangogo Vs. Cheboi & 5 Others 120261 KECA 572 (KLR) and asserted that the applicant stated that he was unable to lodge the Notice of Appeal within the prescribed period because his advocate did not communicate the outcome of the appeal to him in good time due to alleged communication diculties. However, that the said explanation is evasive, selective and does not account for the entire period of delay. Further, that the claim that his advocate failed to timeously communicate the outcome of the appeal should be dismissed as being evasive and incomplete. He added that the applicant failed to disclose critical dates when he actually learned of the judgment and when he instructed his advocate to appeal. 15. Furthermore, that no supporting adavit from the advocate has been led to substantiate the alleged communication breakdown, rendering the explanation speculative and unsupported. Learned counsel asserted that the applicant was personally present in court when the judgment was delivered on 28th May 2026, a fact conrmed by the judgment itself making the applicant's claim of ignorance false and directly contradicted by the court record. He further asserted that engaging an advocate does not absolve a litigant of the duty to remain vigilant over his own case. 16. On arguability, learned counsel contended that the applicant's grounds merely reargue ndings of fact without identifying any error of law or misdirection. That the subordinate Court correctly held that clan land cannot be acquired through adverse possession and the trust claim was equally unsustainable in the absence of a qualifying clan relationship. Further, that subdivision of the parcel did not extinguish the underlying proprietary rights. Therefore, the intended appeal discloses no bona de arguable issue. 17. Finally, on prejudice, learned counsel placed reliance on the case of Oduor Vs. Meritei & 2 Others [2026] KECA 845 (KLR) and submitted that the applicant holds a valid judgment entitling him to enjoy its fruits, including peaceful enjoyment of property under Article 40 of the Constitution. He stated that the applicant remains in occupation of the suit land and had undertaken developments. He https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1768/eng@2026-09-25 3

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added that the balance of justice tilts decisively in his favour. Therefore, he urged the Court to dismiss the application with costs. 18. I have considered the pleadings and the submissions by both parties. The main issue for determination in this application is whether the applicant has satised the conditions for the exercise of the discretionary jurisdiction of this Court under Rule 4 of the Court of Appeal Rules, 2022 to extend time. 19. Rule 77 of the Court of Appeal Rules requires an intended appellant to lodge the Notice of Appeal, before or within fourteen (14) days of the decision, then within 7 days of lodging the notice of appeal, serve copies thereof on all persons directly aected by the appeal but this did not happen. The discretion that I am called upon to exercise in the determination of this application is unfettered and is provided under Rule 4 of the Court of Appeal Rules which provides as follows: The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 20. The said Rule does not provide for factors the Court ought to consider in an application for extension of time but Courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso Vs. Hellen Wangari Mwangi (supra) which is the locus classicus, laid down the parameters 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 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 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.” 21. In Paul Wanjohi Mathenge vs. Duncan Gichane Mathenge [2013] eKLR this Court held as follows: “The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance…” 22. The judgment sought to be challenged was delivered on 28th May 2026. The fourteen-day period therefore expired on or about 11th June 2026. The delay in this instance is approximately 19 (nineteen) days. The applicant's explanation is that he did not become aware of the judgment until 19th June 2026 due to diculties in communication with his advocates occasioned by technical problems with his mobile phone. Whether that explanation is ultimately sucient must therefore be considered alongside his conduct after acquiring knowledge of the judgment. 23. The applicant has explained that his failure to lodge the Notice of Appeal within time was not intentional. He attributes the failure to a breakdown in communication between himself and his advocates. He states that his advocates were unable to reach him and communicate the outcome of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1768/eng@2026-09-25 4

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judgment until after the statutory period had expired. The respondent criticises that explanation on the basis that the applicant has not provided detailed technical evidence concerning the mobile-phone problem and has not led an adavit from his counsel. 24. There is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, this Court held as follows: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 25. It is not in doubt that a Notice of Appeal should be lodged within 14 days of the delivery of the decision which it seeks to appeal against and served within 7 (seven) days after lodging and that did not happen. Further, an applicant seeking an equitable remedy must provide as much detail as reasonably possible concerning the circumstances occasioning the delay. However, in my considered view the Court is not required to approach an application for extension of time with the rigidity applicable to a determination of the substantive appeal. The applicant has given a specic date (19th June 2026) as the date when he became aware of the judgment. He also gave a chronology of the steps he took thereafter; consulted his family, instructed his advocates on 24th June 2026 who led the present application on 1st July 2026. 26. Having considered the proposed grounds of appeal, I am satised that the intended appeal is not frivolous. The questions relating to the legal eect of subdivision, adverse possession, customary trust and the scope of the rst appellate court's duty to re-evaluate evidence are matters which cannot, at this stage, be dismissed as wholly unmeritorious. The respondent contends that the applicant was present in Court when the impugned judgment was delivered and he was therefore aware of the outcome the whole time. He further contended that he is entitled to enjoy the fruits of the judgment in his favour and that allowing the application would occasion prejudice to him. 27. I agree that a successful litigant has a legitimate interest in the nality of litigation and in enjoying the fruits of a judgment. That interest is an important consideration when the Court is called upon to enlarge time. At the same time, the applicant has a constitutional right of access to justice and to have his intended appeal considered in accordance with the law. The granting of an extension of time does not amount to allowing the intended appeal. It merely opens the door for the applicant to exercise his right of appeal and for the respondent to defend the decision before the appellate court. 28. In the present circumstances, the respondent has not demonstrated any specic prejudice that cannot adequately be addressed by an award of costs. Further, I am guided by the overarching objective that disputes should, as far as possible be determined on their merits. That objective does not authorise the Court to disregard procedural rules, but Rule 4 itself gives the Court a mechanism through which, in an appropriate case, a party who has failed to comply with a prescribed time can nevertheless be aorded an opportunity to pursue an appeal. This Court in Mwaura v Mukonza (Civil Appeal (Application) E704 of 2024) [2026] KECA 475 (KLR) held as follows; “ 11. In his adavit in support of the application, the applicant concedes that there were missteps in the handling of this matter by his counsel on record at the material time. The Court also notes that the pleadings are not all together elegant in nature. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1768/eng@2026-09-25 5

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12. However, and despite the foregoing, I am minded to render substantive justice and allow the parties to fully ventilate their respective cases before this Court.” (Emphasis mine) 29. Consequently, I hold that the application is merited and is hereby allowed. The applicant is granted extension of time to lodge and serve the notice of appeal. The same shall be led and served within fourteen (14) days of today’s date. Costs of the application to the respondent. 30. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026 H. ONG’UDI …………………… JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1768/eng@2026-09-25 6

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