Langat v Rotich & 4 others

3. In summary, the Applicant’s averments in the adavit in support of the application and his submissions dated 4th September, 2026 are that the 1st Respondent sued him in Molo CM ELC Case No. 83 of 2019 and judgement was delivered in his (1st Respondent) favour; that the Applicant was aggrieved by the said decision and he therefore led Nakuru ELC Appeal No. E066 of 2025; that the Superior Court delivered judgement on 12th May, 2026 and dismissed the Applicant’s appeal; that the Applicant’s previous advocates did not inform him that the Superior Court had delivered judgement; that the Applicant only came to learn that judgement had been delivered on 16th July, 2026; that he instructed his current advocates on record to seek leave to le an appeal out of time; that the delay in ling the appeal was not deliberate and that the intended appeal is arguable as it intends to raise among other issues, whether the 1st Respondent proved his claim of fraud. 4. The 1st Respondent led a Replying Adavit sworn on 8th September, 2026 and submissions dated 10th September, 2026. In summary, the 1st Respondent’s deposition and submissions are that the Applicant has not placed before the Court any evidence to show when he last communicated with his former advocates and the steps he took to ascertain the status of the appeal before the superior Court; that the Applicant has not explained the steps he took since he learnt of the delivery of the judgement on 16th July, 2026 until 12th August, 2026 when the application under consideration was led; that the Applicant has not demonstrated any exceptional, sucient or satisfactory circumstances that prevented him from taking the necessary steps within the prescribed period; that if the prayers sought are granted, he will be prejudiced as he will be subjected to further litigation; that from the attached draft Memorandum of Appeal, it is evident that the Applicant intends to introduce new issues which issues were not raised before the Environment and Land Court and they cannot therefore be raised before this Court; that the fact that the Applicant is dissatised with the judgement of the superior Court does not in itself constitute sucient cause for enlargement of time. 5. I have considered the application, the grounds in support of, the response thereto and the rival submissions as well as the law. 6. Rule 4 of the Court of Appeal Rules does not provide for factors that 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. 7. This Court in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999]eKLR held 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.” 8. The Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) set out the following principles that Courts have to take into consideration when determining applications for extension of time; “ i) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1992/eng@2026-09-30 2

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ii. A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court. iii. Whether the court should exercise the discretion to extend time is a consideration to be made on a case- by-case basis. iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court. v. Whether there will be any prejudice suered by the respondents if the extension is granted. vi. Whether the application has been brought without undue delay; and v) Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” 9. This Court in Sentrim Kenya Limited v CFC Stanbic Bank Limited [2021] KECA 648 (KLR) held that 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. 10. In the application under consideration, the impugned judgement was delivered on 12th May, 2026 and the application under consideration was led on 12th August, 2026. The delay is about three months. 11. This Court in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR held that a satisfactory explanation for the delay is the key that unlocks the Court’s ow of discretionary favour. 12. The Applicant attributes the delay in the ling of the Notice of Appeal to his former advocates who he contends failed to inform him that the Superior Court had delivered judgement. 13. In Habo Agencies Limited vs Wilfred Odhiambo Musingo [2015] eKLR, this Court held that litigants are the ultimate custodians of their cases and have the duty to follow up on the progress even when they are represented by counsel. 14. The only reason given by the Applicant for the delay was that his Counsel who was then on record did not inform him that judgement had been delivered. It is my view that the Applicant had a responsibility to follow up and nd out if judgement had been delivered. 15. Further, the Applicant contends that he learnt that judgement had been delivered on 16th July, 2026. It is not disputed that the application under consideration was led on 12th August, 2026. As submitted by the 1st Respondent, the Applicant has not given a satisfactory explanation for the delay of between 16th July, 2026 which was when he found out that judgement had been delivered and 12th August, 2026 when the application under consideration was led. 16. As to the arguability or otherwise of the intended appeal, it would not be in my place to determine the same sitting as a single Judge, and I will therefore not delve further into this issue. 17. Therefore, my nding is that the Applicant has not demonstrated and satised the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend the time within which to le the Notice of Appeal. 18. The Applicant’s Notice of Motion application dated 11th August, 2026 lacks merit and it hereby dismissed. DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1992/eng@2026-09-30 3

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AHMED ISSACK …….……..…………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1992/eng@2026-09-30 4

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