Kitui & 2 others v Khaemba & another

3. The dispute in this Application relates to the judgment of the Environment and Land Court at Bungoma delivered on 4th December 2025, wherein the Court declared the Respondent, Ban Sumbule, entitled to the suit land known as LR No. E. Bukusu/W.Sang’alo/1531, and dismissed the Applicants’ counter-claim. The Applicants were aggrieved by the said decision and intended to appeal. However, the Notice of Appeal was not led within the stipulated period of 14 days as required by law, hence the present Application. 4. The principles to be considered in an application for extension of time under Rule 4 of the Court of Appeal Rules are now well settled. In the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court held that the factors this Court considers are: i. The length of the delay; ii. The reason for the delay. iii. (Possibly) The chances of the appeal succeeding if the application is granted; and iv. The degree of prejudice to the respondent if the application is granted. 5. In respect to the length of delay, the judgment was delivered on 4th December 2025. Under Rule 77(1) of the Court of Appeal Rules, the Notice of Appeal ought to have been led within 14 days, that is, by 18th December 2025. The instant Application was led on 17th February 2026. The delay is therefore approximately two (2) months. 6. On reason for the delay, the Applicants attribute the delay to two main factors: the illness of the 1st Applicant, John Makayo Kitui, and the death of a co-defendant, Reuben W. Wanyama. In his supporting adavit, the 1st Applicant depones that he is a 73-year-old man suering from cancer (Gleason score 9) and was undergoing treatment at Moi Teaching and Referral Hospital, Eldoret, around the time the judgment was delivered. He annexed medical records, including a biopsy report and CT scan results, to support this claim. 7. Further, the Applicants state that the death of Reuben W. Wanyama, one of the legal representatives of the estate, disrupted their ability to consult and give instructions to their Advocate. The Respondent has opposed the Application on the grounds that the Applicants were indolent and failed to attend court for the delivery of judgment, arguing that the illness was pre-existing and did not prevent the 1st Applicant from testifying at trial. 8. Upon evaluating the evidence, I note that the medical records annexed show a diagnosis of "Invasive Acinar Adenocarcinoma" of the prostate with metastatic pelvic lymphadenopathy, which is a serious and debilitating condition. The 1st Applicant was 73 years old at the material time. While the Respondent argues that the illness existed before the judgment, the severity of the treatment and the psychological impact of such a diagnosis cannot be understated. The delay is relatively short (two months) and the explanation of illness, coupled with the logistical challenges regarding the death of a party representative, constitutes a reasonable explanation for the delay. I am not persuaded that the delay was deliberate or due to indolence. 9. In regard to the chances of the appeal succeeding, the Applicants have annexed a Draft Notice of Appeal and raised arguable points of law. They argue that the learned Judge erred by relying on a sale agreement that was void ab initio for lack of consent of the Land Control Board and that the transaction violated the Law of Succession Act (Cap 160) as it involved intermeddling with a deceased’s estate. These are arguable points of law that are not frivolous. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2075/eng@2026-05-22 2

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11. In Stanley K. Kinyanjui v. Tony Ketter & 5 Others [2013] eKLR, the Court held that an arguable appeal must not necessarily succeed, but one that raises a bona de issue deserving consideration by the Court. I nd that the intended appeal meets this threshold. 12. On whether the Respondent is likely to suer prejudice if this application is allowed, the Respondent argues that he has been in possession of the land since the year 2000. However, prejudice is not presumed; it must be demonstrated. The Respondent remains in possession of the suit land and has not shown how hearing the Appeal would irreparably harm him. On the other hand, denying the Applicants an opportunity to appeal would extinguish their constitutional right of access to justice under Article 50 of the Constitution. 13. In the case of Muringa Co. Ltd v. Archdiocese of Nairobi Registered Trustees [2020] eKLR, the Court allowed an extension of time where the delay had been suciently explained and was not deliberate. Similarly, in Richard Nchochei Leiyagu v. IEBC & 2 Others [2013] eKLR, the Court emphasized that the right to be heard is fundamental and should not be curtailed except for compelling reasons. 14. Having considered the length of the delay, the explanation oered for the delay, the arguable nature of the appeal, and the lack of prejudice to the Respondent, I am inclined to exercise my discretion in favor of the Applicants. 11. Consequently, I allow the Application dated 17th February 2026 in the following terms: a. Time is hereby extended to allow the Applicants to le and serve the Notice of Appeal out of time. The Notice of Appeal shall be deemed duly led and served upon the Respondent if led within 7 days from the date of this Ruling. b. The Applicants shall have 30 days from the date of ling the Notice of Appeal to serve the Record of Appeal. c. The costs of this Application shall abide by the outcome of the Appeal. DATED AND DELIVERED AT KAKAMEGA THIS 22ND DAY OF MAY 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/2026/2075/eng@2026-05-22 3

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