Mariga v Ketere & another

for purposes of commencing the appellate process. However, unknown to him, the advocates failed to lodge the Notice of Appeal or take the necessary steps required under the Court of Appeal Rules. 3. The applicant further deposes that between October 2025 and May 2026, he repeatedly followed up the matter with his advocates through telephone calls, text messages and visits to their oces and was consistently assured that the appeal process was progressing well. He states that it was only on 7th May 2026, after conducting an independent inquiry through the Judiciary Case Tracking System and the relevant court registry, that he discovered that no Notice of Appeal had been led. 4. Upon discovering the omission, he immediately withdrew instructions from his former advocates, retrieved his le and took matters into his own hands. He then prepared this application within a span of four days. He contends that the delay was occasioned solely by the negligence and inaction of his former advocates which should not be visited upon him. He further asserts that the intended appeal has overwhelming chances of success. 5. Annexed to the application is a draft Memorandum of Appeal raising several grounds, among them that the learned Judge erred in law and fact in upholding the doctrine of forfeiture and re-entry without compliance with section 73 of the Land Act; failed to properly consider the doctrine of equitable estoppel; failed to address the issue of unjust enrichment arising from developments allegedly undertaken by the applicant on the suit property; and failed to properly safeguard the applicant's right to a fair hearing. 6. The application is opposed by both the respondent and the interested party through the replying adavits dated 20th august,2026 by the respondent and that of 10th September, 2026, by the interested himself They contend that the delay has not been satisfactorily explained, that no sucient evidence has been tendered demonstrating that instructions were issued to former counsel to institute the appeal, and that the applicant has merely sought to shift blame to counsel without demonstrating personal diligence. 7. They further contend that the applicant was aware of the judgment immediately it was delivered and indeed participated in post-judgment proceedings, including settlement of the respondent’s taxed costs. They argue that the applicant cannot therefore claim complete ignorance of the status of the intended appeal and that the delay of approximately seven months was inordinate and inexcusable. They all prayed for the dismissal of the application with costs. 8. Rule 4 of the Court of Appeal Rules, provides that: “ 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.” 9. The principles governing the exercise of the Court's discretion to extend time are now well settled. In Kipkorir & 3 others v Kipngochoch Farm Co Ltd & 2 others [2024] KECA, it was stated: “ The Court of Appeal evaluates extension of time requests under Rule 4 by considering whether conditions are met, adopting the seven foundational principles from Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others. These principles establish that extension of time is an equitable remedy rather than a right, applicants bear the burden of proof, and discretion is applied on a case- by-case basis. Key factors include providing a reasonable and satisfactory explanation for the delay, assessing https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1868/eng@2026-09-23 2

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potential prejudice to respondents, ensuring the application is brought without undue delay, and considering public interest in specic matters such as election petitions.” 10. Having carefully considered the application, the adavits on record, the submissions by all parties and the applicable law, the issue for determination is whether the applicant has satised the threshold for extension of time under Rule 4 of the Court of Appeal Rules. 11. The rst issue concerns the length of the delay. The judgment sought to be appealed against was delivered on 30th September 2025. Pursuant to Rule 77(2) of the Court of Appeal Rules, the applicant was required to lodge a Notice of Appeal within fourteen (14) days from the date of the decision. Given that the present application was led on 20th May 2026, approximately seven months after the delivery of the impugned judgment the resulting delay is admittedly inordinate. Consequently, in line with established judicial principles, this timeline necessitates a reasonable and satisfactory explanation, which the applicant has fully provided in the supporting adavit. 12. The applicant attributes the delay to the negligence, omission and misrepresentation by his former advocates. He maintains that he consistently followed up the matter and only discovered on 7th May 2026 that no Notice of Appeal had ever been lodged. The respondent and interested party dispute this explanation and argue that no sucient evidence was placed before Court to establish that instructions were indeed given to counsel or that reasonable diligence was exercised by the applicant throughout the period in question. 13. I have considered the rival positions. Unlike cases where litigants merely blame counsel without any explanation of their own conduct, the applicant has demonstrated to my satisfaction that he made continuous eorts to follow up the matter and moved the Court shortly after discovering the omission. While the explanation is not entirely awless, I am persuaded nonetheless that the delay has been reasonably explained in the peculiar circumstances of this case. 14. On whether the intended appeal is arguable, I am not required at this stage to make denitive ndings on the merits of the proposed appeal. It suces if the applicant demonstrates the existence of a bona de arguable ground. Upon perusing the draft Memorandum of Appeal annexed to the application, I am satised that the issues concerning forfeiture, re-entry, equitable estoppel, unjust enrichment and the right to a fair hearing are not frivolous and deserve consideration by the Court. 15. As regards prejudice, the respondent and interested party argue that litigation must come to an end and that further delay will prejudice their enjoyment of the fruits of the judgment. While I appreciate that concern, I am not persuaded that any prejudice likely to be occasioned cannot be compensated by an award of costs. Conversely, refusal of the application would permanently deny the applicant an opportunity to challenge the decision through the appellate process. 16. In the circumstances, and bearing in mind the principle that disputes ought, where possible, to be determined on their merits, I nd that the applicant has satisfactorily explained the delay, demonstrated that the intended appeal is arguable and established sucient grounds for the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules. 17. Consequently, the applicant has persuaded me that the application is deserving and merited. Accordingly, the application allowed and time is extended for the applicant to le and serve the Notice of Appeal within the next fourteen (14) days from the date hereof and thereafter the Record of Appeal shall be led and served within the period prescribed by the Court of Appeal Rules. Costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1868/eng@2026-09-23 3

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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/2026/1868/eng@2026-09-23 4

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