Jacob & 3 others v Kisumu County Government & 7 others

RULING 1. The application before me is the Notice of Motion dated 15th May, 2026, brought under sections 3A and 3B of the Appellate Jurisdiction Act, Rules 4 and 82 of the Court of Appeal Rules, and all other enabling provisions of the law. Through the application, the applicants seek leave to le and serve the Record of Appeal out of time against the Judgment and decree delivered on 11th November, 2025, in ELC No. 59 of 2019, and that the Record of Appeal be deemed as duly led upon compliance with such timelines as the Court may direct. 2. The application is supported by the adavit of David Otieno Odanga, the 3rd applicant sworn on 15th May, 2026. The 6th respondent, Kenya Railways Corporation, opposed the application through the Replying Adavit sworn by Tom Mutei on 28th May, 2026. The applicants subsequently led written submissions dated 12th June, 2026, while the 6th respondent led written submissions dated 25th June, 2026, pursuant to the Directions of the Deputy Registrar of this Court 3. The applicants' case is premised on the grounds set out on the face of the application, the supporting adavit, the further adavit and the submissions led in support thereof. 4. In the supporting adavit, the applicants depose that they were dissatised with the Judgment delivered on 11th November, 2025 which, inter alia, declared their title to Kisumu Municipality/ Block 6/517 illegal and void and upheld the counterclaim by 6th respondent. They further depose that immediately upon delivery of the judgment, they instructed their advocates to commence the appellate process and accordingly lodged a Notice of Appeal on 20th November, 2025, and simultaneously applied for certied copies of proceedings and judgment. 5. The applicants contend that despite having taken all the requisite steps within time, the Environment and Land Court Registry erroneously addressed the notication informing parties that proceedings were ready for collection to MOA Advocates LLP instead of their advocates on record, Messrs. Mwamu & Company Advocates. Consequently, neither the applicants nor their advocates became aware that the proceedings were available for collection. 6. The applicants further depose that it was only upon receipt of a letter from the Deputy Registrar dated 24th March, 2026, which was received by their advocates on 13th April, 2026, that they became aware that the proceedings had been prepared. The proceedings were then collected on 14th April, 2026, whereupon the applicants moved the Court with dispatch and led the present application on 15th May, 2026. 7. The applicants maintain that the delay in ling the Record of Appeal was not occasioned by negligence or indolence on their part but resulted from an administrative error attributable to the court registry. They further contend that the intended appeal raises serious and arguable issues of law and fact deserving consideration by this Court. 8. Opposing the application, the 6th respondent contends that the applicants have failed to satisfactorily explain the delay in lodging the intended appeal, did not demonstrate reasonable diligence in following up the proceedings, failed to comply with the timelines set out in the Court of Appeal Rules, and have consequently not laid a proper basis for the exercise of this Court's unfettered discretion in their favour. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1968/eng@2026-09-23 2

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9. Having perused and considered the application, the adavits on record, the submissions by counsel and the law, this Court is called upon to determine whether the applicants have satised the threshold for enlargement of time under Rule 4 of the Court of Appeal Rules. This rule provides interlia: “ 4. 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 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.” 10. Rule 4 of this Court’s Rules vests in the Court a wide and unfettered discretion to extend time for the doing of any act authorized or required by the Rules. That discretion, though unfettered, must be exercised judicially and upon settled principles. In Kipkorir & 3 Others v Kipngochoch Farm Co. Ltd & 2 Others [2024] KECA 70 (KLR), the Court reiterated that an applicant must place before the Court material sucient to justify the exercise of its equitable discretion. Likewise, in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited [2020] eKLR, the Court armed that the relevant considerations include the period of delay, the reasons advanced for such delay, the conduct of the parties, the prejudice likely to be suered by either side, the public interest, where applicable, and whether the intended appeal is arguable. It must however always be appreciated that these considerations are not exhaustive. 11. The rst issue for determination is the length of delay. The impugned judgment was delivered on 11th November, 2025. The applicants lodged a Notice of Appeal on 20th November, 2025, and applied for proceedings on the same date. The present application was subsequently led on 15th May, 2026. Although the delay is not insignicant, the same must be considered in the context of the explanation oered by the applicants. 12. On the reason for delay, the applicants contend that the Environment and Land Court Registry wrongly transmitted the notication of readiness of proceedings to MOA Advocates LLP instead of their advocates, Messrs Mwamu & Company Advocates. It is their position that they only became aware that the proceedings had been prepared upon receipt of the Deputy Registrar's communication on 13th April, 2026, and promptly collected the proceedings the following day. 13. The 6th respondent disputes that explanation and argues that the applicants ought to have exercised greater vigilance in following up the proceedings. It is further contends that the applicants could have led the Record of Appeal and subsequently supplemented the same in accordance with the Rules. 14. I have considered the rival positions. The evidence placed before me demonstrates that the applicants lodged a Notice of Appeal within time and applied for proceedings immediately thereafter. The explanation that the delay arose due to the registry's misdirection of the notication of readiness of proceedings has not been controverted by any other evidence. In my view, the delay has been satisfactorily explained therefor. 15. On whether the intended appeal is arguable, this Court is not required at this stage to determine the merits of the appeal. It is sucient if a single bona de arguable ground is disclosed. A perusal of the intended grounds of appeal reveals issues concerning the legality of the applicants' title, the learned Judge's evaluation of the evidence, the eect of the applicants' occupation of the suit property and the propriety of the orders granted in favour of the 6th respondent. I am satised that these are not frivolous grounds. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1968/eng@2026-09-23 3

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16. With regard to prejudice, the 6th respondent is undoubtedly entitled to enjoy the fruits of the judgment delivered in its favour. However, no specic prejudice has been demonstrated that cannot adequately be compensated by an award of costs. Conversely, refusal of the application would permanently shut out the applicants from pursuing and exhausting the appellate process that they are entitled to. 17. In the peculiar circumstances of this case, I am persuaded that the applicants acted promptly after judgment, lodged their Notice of Appeal within time, applied for proceedings without delay and that the subsequent default was substantially occasioned by an administrative error or lapse attributable to the court registry. The interests of justice therefore favour the determination of the intended appeal on its merits rather than shutting out the applicants on a procedural technicality. 18. Consequently, the application is hereby allowed. Time is extended for the ling and service of the Record of Appeal against the Judgment delivered on 11th November, 2025, in ELC No. 59 of 2019. The applicants shall le and serve the Record of Appeal within thirty (30) days from the date hereof. Costs of the application shall abide the outcome of the intended appeal. DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ……………………………… JUDGE OF APPEAL I certify that this is atrue copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1968/eng@2026-09-23 4

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