Akoko v Akoko

out that no documentary proof of instruction or follow-up was exhibited, that the intended appeal lacks merit, and that reopening the litigation prejudices his right to enjoy the nality of judgment. 2.Issues for Determination i. Whether this Court possesses the requisite jurisdiction to enlarge time to lodge a Notice of Appeal. ii. Whether the Applicant has established sucient cause to warrant the exercise of judicial discretion in her favor. iii. What orders should issue as to the draft Notice of Appeal and costs. 3. Analysis and Judicial Determination I. Jurisdiction 4. Although the Applicant invoked Rule 4 of the Court of Appeal Rules, the primary source of this Court’s jurisdiction to extend time for lodging a Notice of Appeal against its own decision is Section 7 of the Appellate Jurisdiction Act. Under the constitutional structure, the Environment and Land Court enjoys equal status with the High Court, thereby possessing full jurisdiction under Section 7. As established in N’ganya & 2 Others v Mukabana [2026] KEELC 1056 (KLR), this Court retains jurisdiction to extend time where no initial step or Notice of Appeal has been formally lodged before the Court of Appeal. Because no step was taken in the appellate registry, this Court is properly seized of the matter. In line with Article 159(2)(d) of the Constitution, procedural missteps in citing Rule 4 rather than Section 7 will not defeat the court's jurisdiction. II. Exercise of Discretion and the "Blame on Counsel" Defense 5. The principles governing the extension of time are well settled in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR and Paul Musili Wambua v Attorney General [2015] KECA 471 (KLR): extension of time is an equitable, discretionary remedy, requiring an applicant to account for every period of delay and show lack of undue prejudice to the opposing party. 6. The central issue here is whether a delay of nearly four years can be cured simply by invoking advocate negligence. Courts across Commonwealth jurisprudence have rmly rejected the idea that attorney failure acts as an automatic license to reopen lapsed claims. 7. In the South African Constitutional Court decision of Saloojee and Another NNO v Minister of Community Development 1965 (2) SA 135 (A), the court articulated the classic standard regarding counsel oversight: “ There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insuciency of the information submitted... To hold otherwise would lay an operational premium upon the negligence of legal practitioners." 8. Ugandan courts weigh several competing interests When a party les an appeal out of time and seeks leave or an extension, or when a respondent applies to strike out an incompetent or late appeal.The classic parameters (often cited from foundational cases and rened in subsequent rulings like Makumbi v. Mugimba) include: (a) The Length of the Delay: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5809/eng@2026-09-17 2

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Inordinate or unexplained delays weigh heavily against the applicant. However, brief lapses or delays caused immediately after realizing a mistake can be excused if handled diligently. (b) The Reason for the Delay ("Sucient Cause"): The applicant must explain why the timeline was missed. Acceptable reasons frequently involve systemic mistakes by counsel, sudden illness, or bona de pursuit of alternative legal remedies (such as mistakenly ling for a review or revision instead of an appeal). Blunder by counsel should not automatically punish an innocent litigant, provided there is no gross negligence or deliberate delay. (c) Prejudice to the Respondent: The court looks at whether the respondent will suer irreparable prejudice that cannot be adequately compensated by an order for costs. If the delay has created settled expectations or rights that would be severely disrupted, leave may be denied. (d) The Merits / Chances of Success of the Appeal: While courts will not conduct a mini-trial on appeal during an application for extension, a manifestly hopeless or frivolous appeal will not be saved by an extension of time. Conversely, if there are clear, arguable questions of law or fact, the court leans toward preserving the right of appeal. 9. Similarly, the High Court of Uganda in Kampala Misc. No. 0459 of 2024 Makumbi Godrey versus Mugimba Derrick the Judge made this observation: It is well settled in a wealth of authorities, that good cause or sucient reason must relate to the inability or failure to take an essential step within the time prescribed by the law, and or rules of procedure “The factors a court has to consider in an application for extension of time to appeal include; the length of the delay, the reason for the delay, the degree of prejudice to the other party and the chances of success (See Mulindwa Georqe William v Kisubika Joseph) ln this case, the reason given by Makumbi is that; 'unknown to him, his former lawyer led a notice of appeal, but failed to nalise the appeal process in accordance with his instructions. That it is only after he inquired in January 2024, that he was shocked to learn that his lawyers never nalised the process'. After careful evaluation of this matter, I nd that the said reason given by Makumbi, does not suciently warrant that he be granted an extension of ttime. His reason is defeated by the fact that the Orders of the lower Court were time bound and required him to act quickly and diligently. He did not. lt is thus apparent to this Court that the said reason given by Mr. Makumbi, fails to account for the period of over ve (5) months from the date of Judgment. That inordinate delay is no more than a sco at the authority and process of court. I am emboldened in my decision by the measure of time applied in the Mulindwa case (supra), in which the Supreme Court upheld the Court of Appeal's nding that a delay of ve (5) months was inordinate delay, and that the Court of Appeal rightly dismissed the application for extension of time Courts have a duty to ensure that the fruits of a judgment that are due to a successful party are not frustrated on the whims, wishes, and by the actions of an unsuccessful, defaulting party. That there must be an end to litigation https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5809/eng@2026-09-17 3

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10. Applying these persuasive standards alongside our local jurisprudence, the Applicant was present when judgment was delivered on 21st November 2022. Allowing a period of 3 years and 7 months to lapse without obtaining a copy of the Notice of Appeal, a ling receipt, or initiating written inquiries exceeds any reasonable tolerance for lay reliance. Equity aids the vigilant, not those who slumber on their rights (vigilantibus non dormientibus iura subveniunt). To excuse nearly four years of complete inactivity without a single piece of contemporaneous documentary evidence showing active inquiry would destabilize the doctrine of nality in litigation. 11. The law is clear that litigation belongs to a litigant and not to Counsel, and that a party bears the responsibility of monitoring the progress of its case. A litigant cannot escape the consequences of inaction by simply shifting blame to Counsel. In these circumstances, the explanation oered does not satisfactorily account for the delay. (Kimaru J. in Savings and Loans Limited vs Susan Wanjiru Muritu, NRB HCC 397 of 2002) III. Arguability and Finality 12. While the Applicant asserts that her proprietary interests are at stake, she failed to annex a draft Memorandum of Appeal. Without this document, the Court is unable to evaluate whether the intended appeal raises arguable points of law. 11. Against this stands the Respondent’s accrued right to the nality of judgment. The constitutional requirement under Article 159(2)(d) to render substantive justice does not override statutory deadlines or validate gross, unexcused delay. Reopening this matter after such a prolonged period without sucient cause would cause undue prejudice to the Respondent. 11. Conclusion and Orders. 12. The Applicant has failed to establish sucient cause to justify an extension of time for a delay spanning 3 years and 7 months. Consequently, the application lacks merit and must fail. 13. The nal orders of this Court are as follows: 1. Leave to Change Advocates is granted; the rm of M/S Kerario Marwa & Co. Advocates is hereby recognized as being on record for the Applicant. 2. The Notice of Motion dated 10th June 2026 seeking extension of time to lodge and serve the Notice of Appeal is hereby dismissed. 3. Considering the familial nature of the dispute and the circumstances of the application, each party shall bear their own costs. Orders accordingly. DATED, SIGNED, AND DELIVERED ELECTRONICALLY AT HOMA BAY THIS 17TH DAY OF SEPTEMBER 2026. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT AND LAND COURT In the presence of; 1. Odero Aluoch for the Respondent -Present. 2. Achola for the Applicant -Absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5809/eng@2026-09-17 4

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3. Court Assistant; Ms. Awino https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5809/eng@2026-09-17 5

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