Njoroge & 11 others v Teleposta Pension Scheme Registered Trustees & 2 others

(An application for extension of time to file and serve the Memorandum and Record of Appeal out of time in the intended appeal from the ruling of the Environment and Land Court at Naivasha (M.C Oundo, J) delivered on 19th March, 2026 in ELC Case No. E055 of 2025) RULING 1. Before me is a Notice of Motion application dated 28th July, 2026 brought under Sections 3A & 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules. The application seeks for an order for leave to le and serve the Memorandum and Record of Appeal out of time against the ruling of the Environment and Land Court (ELC) at Naivasha in ELC Case No. E055 of 2025 delivered on 19th March, 2026. 2. The grounds in support of the application are borne on the face of the application and the adavit in support sworn by William Mburu Njoroge the 1st Applicant. 3. In summary, the Applicants averments and submissions are that the trial Court delivered a ruling on 19th March, 2026 wherein it found that Naivasha ELC Case No. E055 of 2025 was res judicata the proceedings in Nakuru ELC Case No. 225 of 2012 and the pending Court of Appeal proceedings in Nakuru Civil Appeal No. E118 of 2023. 4. That the Applicants were aggrieved by the said ruling and they led a Notice of Appeal dated 27th March, 2026. Before then, that is on 25th March, 2026, the Applicants applied for typed proceedings for purposes of preparing the record of appeal. 5. That the Applicants were supplied with the typed proceedings on 24th June, 2026 after the period within which they were to le the Memorandum and record of Appeal had lapsed. That the delay in the ling of the Memorandum and Record of Appeal within the prescribed timelines was occasioned by the delay of 89 days which was the period that it took for the proceedings to be supplied. That the delay was not deliberate and the intended appeal raises arguable issues that include whether the trial Court erred in nding that Naivasha ELC Case No. E055 of 2025 was res judicata and yet it raised a new cause of action. That the Applicants were not parties to the previous proceedings and that the pendency of the said proceedings did not oust the jurisdiction of the Environment and Land Court to determine the fresh dispute that was founded on new facts and a distinct cause of action. 6. The Applicants contend that if leave is not granted, they will be prejudiced as they will be denied the opportunity to ventilate the appeal while on the other hand, the Respondents will not be prejudiced if the prayers sought are granted. 7. In response to the application, the 1st Respondent led a Replying Adavit sworn by Peter K. Rotich the 1st Respondent’s Administrator/Trust Secretary together with submissions. The 1st Respondent contends that under Rule 84(1) of the Court of Appeal Rules, the sixty day period to institute an appeal excludes the time certied by the Registrar as having been required to prepare and deliver the proceedings; that the ruling the Applicants intend to appeal from was delivered on 19th March, 2026; that the Applicants lodged a Notice of Appeal on 27th March, 2026 and they ought to have led the Memorandum of Appeal and the Record of Appeal by 27th May, 2026; that the application under consideration was led on 28th July, 2026 which was two months after the sixty-days period lapsed and four months after the impugned ruling was delivered; that the Applicants contend that they were supplied with the typed proceedings on 24th June, 2026 but they led the application under consideration on 28th July, 2026; that the delay of thirty- four days has not been accounted for; that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1996/eng@2026-09-30 2

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the delay between when the Applicants requested for the proceedings to when they were supplied was ninety-one days and not eighty-nine as alleged. 8. I have considered the application, the grounds in support of, the response thereto and the rival submissions as well as the law. 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. In the judicial decision of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999]eKLR the Court 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.” 9. 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. 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 vii. Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” 10. 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. 11. In the present suit, the impugned ruling was delivered on 19th March, 2026 and the application under consideration was led on 29th July, 2026. The delay is about four months and ten days. 12. This Court in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR 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 favorably exercisable.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1996/eng@2026-09-30 3

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13. As was held in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet (supra), a satisfactory explanation for the delay is the key that unlocks the Court’s ow of discretionary favour. 14. The Applicants contend that they requested for the proceedings on 25th March, 2026 which proceedings were supplied on 24th June, 2026. The Applicants therefore attribute this delay to the period it took for the typed proceedings to be supplied to them. 15. It is not disputed that the Applicants applied for typed proceedings on 25th March, 2026 which proceedings were supplied on 24th June, 2026. It is also not disputed that a Certicate of Delay was issued on 2nd July, 2026. 16. As contended by the 1st Respondent, no explanation has been given for the delay in the ling of the application under consideration as the Applicants were supplied with the proceedings on 24th June, 2026 and yet they led the application under consideration on 28th July, 2026. 17. However, in consideration of Section 3A and 3B of the Appellate Jurisdiction Act, it is in the interest of justice that leave is hereby granted to the Applicants to le the Record and Memorandum of Appeal out of time. 18. 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. 19. On prejudice, it is my nding that the Respondents will not suer any prejudice if the prayers sought are granted. 20. The totality of my ndings, therefore, are that the Applicants have 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 Memorandum and Record of appeal. 21. Accordingly, the Applicants Notice of Motion application dated 28th July, 2026 has merit and it is hereby allowed. The Applicants are to le and serve the Memorandum and Record of Appeal within Thirty (30) days from the date of this ruling. Costs of the application to abide the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER, 2026. AHMED ISSACK ………….……..…………… 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/2026/1996/eng@2026-09-30 4

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