Okhatietie v Mbayi & another (Civil Application E038 of 2026) [2026] KECA 2058 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 2058 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KAKAMEGA CIVIL APPLICATION E038 OF 2026 RB NGETICH, JA JULY 17, 2026 BETWEEN JOSIAH OLUCHINJI OKHATIETIE ..................................................... APPLICANT AND ROSE AMEYO MBAYI .................................................................. 1ST RESPONDENT MOSES MAPESA MUSASIA ........................................................ 2ND RESPONDENT (An application for extension of time to file an appeal out of time from the judgment of the Environment and Land Court at Kakamega (ELCLA No. E006/2023) delivered on 28th May 2025) RULING 1. Before me is an application dated 19th February 2026 brought under Rule 4 of the Court of Appeal Rules. The Applicant, Josiah Oluchinji Okhatietie, seeks leave to le an appeal out of time from the judgment of the Environment and Land Court at Kakamega delivered on 28th May 2025, as well as a stay of execution of the resulting decree pending the hearing of the intended appeal. 2. The application is premised on the grounds that the Applicant, who is an elderly small-scale farmer, was unable to meet the statutory timelines for ling an appeal due to a dispute with his previous counsel over legal fees, sickness, and a general lack of funds. It is the Applicant’s contention that these factors were beyond his control and exhausted his limited nancial resources, thereby delaying his ability to instruct his current advocates on record. 3. The jurisdiction to extend time is discretionary and is anchored on Rule 4 of the Court of Appeal Rules. The guiding principles for the exercise of this discretion were settled in Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, where the Court identied the length of the delay, the reason for the delay, the possible chances of the appeal succeeding, and the degree of prejudice to the respondent if the application is granted as the key considerations. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2058/eng@2026-07-17 1
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4. These factors are not exhaustive, as was noted in Fakir Mohammed v Joseph Mugambi & 2 others (2005) eKLR, which allows the Court to consider the resources of the parties and the need to balance competing interests. Furthermore, Andrew Kiplagat Chemuringa v Paul Kipkorir Chebet eKLR emphasizes that any delay, regardless of its length, must be satisfactorily explained with valid and clear reasons. 5. Turning to the rst two considerations, the judgment was delivered on 28th May 2025, and this application was led on 19th February 2026, resulting in a delay of approximately nine months. The Applicant attributes this delay to a fee dispute with his previous counsel and his own ill health, which collectively led to severe nancial strain. He argues that as a small-scale farmer, his nancial constraints contributed largely to the delay. 6. Regarding the merits of the intended appeal, the Applicant submits that it is arguable. He specically notes that he has been in continuous use and occupation of the suit land since 2004 and that the property is registered in his name. He asserts that these facts present a prima facie case with reasonable chances of success. 7. On the question of prejudice, the Applicant argues that the Respondents will not suer any prejudice if the extension of time is granted, particularly because they have allegedly not been in use or occupation of the suit land for over twenty years. 8. Having considered the grounds on record, the supporting adavit, and the principles governing Rule 4 of the Court of Appeal Rules, I nd that the Applicant’s explanation regarding his health and nancial status, coupled with the arguably meritorious nature of the appeal, justies the exercise of my discretion in his favor. 9. In light of the foregoing, I make the following orders: a. The Applicant is granted leave to le and serve the Notice and Record of Appeal out of time, which must be done within fourteen (14) days from the date of this ruling; b. The Deputy Registrar is directed to list the appeal for a case management conference; and c. The costs of this application shall abide by the outcome of the intended appeal. DATED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF JULY, 2026. R. NGETICH ………………………………… 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/2026/2058/eng@2026-07-17 2
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