James Njoroge Kamau (Suing through his Donee Louisa Eunice Njoki) v Charles Njuguna (Sued as the Administrator of the Estate of Francis Njuguna) & 3 others

2. The record shows that the Applicant had already lodged a Memorandum of Appeal dated 07.06.2025 on 08.04.2025. Consequently, the question is not, strictly speaking, whether an appeal should now be admitted out of time. Rather, the issue is whether the delayed compilation and formal filing of the Record of Appeal should be regularised and, if so, upon what terms. 3. The application was supported by an affidavit sworn by Louisa Eunice Njoki. The 1st, 3rd and 4th Respondents filed a Replying Affidavit sworn by Dennis Charles Njuguna. They subsequently filed written submissions dated 12.08.2026. The 2nd Respondent filed neither a response nor submissions. B. FACTS AND PROCEDURAL BACKGROUND 4. The underlying dispute concerns land parcel KABETE/KARURA/2443. Judgment was delivered on 12.03.2025. The trial court granted the Applicant thirty days within which to appeal. 5. On 14.03.2025, the Applicant's advocates wrote to Kikuyu Law Courts requesting for certified copies of typed proceedings and a certified copy of the judgment. The Applicant thereafter filed his Memorandum of Appeal on 08.04.2025, approximately twentyseven days after judgment. 6. The Applicant stated that the typed proceedings were certified on 23.06.2025 but were not supplied to him at that time. On 25.06.2025, Kikuyu Law Courts as damaged by fire during public demonstrations thereby disrupting court operations and access to THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 2

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court records. The Applicant stated that physical follow-ups were subsequently made at the registry and that the proceedings together with the certified judgment were eventually obtained on 11.03.2026. 7. The present Application was filed on 05.05.2026, approximately fifty-five days after the Applicant says the proceedings were obtained. The Applicant contended that the delay was occasioned by circumstances outside his control and that the intended appeal was arguable. 8. The Respondents disputed the sufficiency of that explanation. They point out that, apart from the letter dated 14.03.2025, the Applicant had not exhibited further correspondence, registry acknowledgments or other contemporaneous documentary evidence demonstrating persistent follow-up. 9. The Respondents further stated that KABETE/KARURA/2443 had since been subdivided and resultant titles registered in favour of third parties. Their own evidence, however, indicated that the thirdparty interests arose before or independently of the present appeal. 10. A further material matter disclosed in the Replying Affidavit is that the 3rd Respondent, Nicky Njuguna Mucha, died on 20.05.2020, several years before this appeal was instituted. His death certificate was exhibited in the Replying Affidavit. C. ISSUES FOR DETERMINATION THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 3

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11. The court of the view that the Application turns on four principal questions: a. Whether the appeal was validly instituted within the period prescribed by law; b. Whether the Applicant requires enlargement of time to lodge a record of appeal; c. Whether the Applicant's delay and subsequent noncompliance with court directions justify refusal of of the application; and d. What legal consequence flows from the 3rd Respondent’s demise before the institution of the appeal. D. ANALYSIS AND DETERMINATION Whether the appeal was validly instituted within the period prescribed by law 12. Section 16A (1) of the Environment and Land Court Act requires appeals from subordinate courts in matters falling within the jurisdiction of this court to be filed within 30 days of the decree or order appealed against. Subsection (2) permits admission of an appeal out of time where good and sufficient cause is demonstrated. 13. Order 42 Rule 1 of the Civil Procedure Rules provides that an appeal shall be in the form of a Memorandum of Appeal. More specifically, Order 42 Rule 10(2) provides that the date on which a THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 4

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Memorandum is presented and date-stamped by the registry is the date of filing the appeal. 14. The material on record shows that judgment was delivered on 12.03.2025 and the Memorandum of Appeal was filed on 08.04.2025. The court is of the opinion that the instant appeal was therefore instituted within approximately 27 days and was plainly within the 30 statutory period. 15. The reference in the Applicant's Application to the 30 days granted by the trial court does not alter that conclusion. The Appellant had 30 days to file his appeal and he complied by lodging the Memorandum of Appeal dated 07.04.2025. 16. Order 42 Rule 2 expressly allows a certified decree or order not filed with the Memorandum of Appeal to be supplied later. Order 42 Rule 13 similarly contemplates that the pleadings, proceedings, evidence and judgment must be assembled before the appeal proceeds to substantive directions and hearing. 17. In Ochanda v EON Energy Limited [2025] KEHC 7964 (KLR), the High Court held that the Civil Procedure Rules prescribed no independent statutory period for filing a Record of Appeal and that section 79G relates to filing of the Memorandum of Appeal. The Environment and Land Court reached a substantially similar conclusion in Digoi v Seurei [2024] KEELC 6982 (KLR), observing that although no specific timeline is prescribed for a Record of Appeal, an appellant does not thereby obtain licence to THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 5

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delay indefinitely. In that case, the court imposed a strict fourteenday period for filing the Record, with a default consequence. 18. The present Application should not be determined as if the Applicant was seeking to revive an appeal filed 13 months late. The Memorandum of Appeal was filed within time. What calls for the court's discretion is the substantial delay in filing and serving the record of appeal. 19. The Applicant's conduct in that respect is unsatisfactory. The destruction of Kikuyu Law Courts on 25.06.2025 was a material disruption and offers a credible explanation for part of the difficulty in obtaining the trial court record. However, the proceedings had apparently been certified two days earlier, on 23.06.2025. Although the Applicant alleges physical follow-ups thereafter, those efforts are not independently supported by documentary evidence. 20. More significantly, after obtaining the certified proceedings on 11.03.2026, the Applicant waited approximately 55 days before filing this present Application. No particular explanation was offered for that delay. His subsequent failure to comply with the court's express directions of 16.05.2026 to file a Further Affidavit and submissions reinforces a finding of want of diligence. The court should not minimize such non-compliance. Court directions are not optional and the overriding objective under sections 1A and 1B of the Civil Procedure Act requires parties to assist the court in the expeditious disposal of proceedings. THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 6

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Whether the Applicant's delay and subsequent non- compliance with court directions justify refusal of the application; 21. The Respondents also placed weight on non-service of the Memorandum of Appeal. That objection should be approached through Order 42 Rule 12, not Rule 3. Rule 12 provides that after a Judge admits the appeal under section 79B of the Civil Procedure Act, the Registrar notifies the appellant, who must serve the Memorandum within 7 days upon receiving that notice. There is no material demonstrating that admission under section 79B of the Civil Procedure Act and the Registrar's notification had occurred before the present proceedings. Non-service therefore does not presently invalidate the filing of the Memorandum of Appeal. 22. That finding does not, however, absolve the Applicant from the obligation to prosecute the appeal with reasonable expedition. Sections 1A and 1B of the Civil Procedure Act impose upon parties a duty to assist the court in the just, expeditious and proportionate disposal of proceedings. The fact that the Respondents remained unaware of the appeal for over one year, when considered together with the limited documentary evidence of follow-up with the subordinate court registry, the unexplained period of approximately 55 days after obtaining the proceedings, and the Applicant’s subsequent failure to comply with this court’s directions of 16.06.2026, cumulatively demonstrates a material want diligence. THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 7 of

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23. The alleged third-party interests justify expedition but should not be overstated as prejudice arising from the delay. The Respondents' own case was that the subdivision and transfers occurred before or independently of the appellate delay. Allowing the Record to be formally filed does not itself cancel, suspend or otherwise affect any third-party title. What legal consequence flows from the 3rd Respondent’s demise before the institution of the appeal. 24. The position of the 3rd Respondent is different. He died on 20.05.2020, whereas this appeal was instituted in April 2025. This is therefore not a conventional case of an appeal subsequently abating because a respondent died while it was pending. In Housing Finance Company of Kenya Limited v Muriu (Deceased) [2024] KEHC 419 (KLR) the High Court held that an appeal filed against a person who was already deceased at the time of filing is a nullity as against that person. 25. It follows that there is no appeal capable of being revived against the 3rd Respondent under Order 24 of the Rules. His name should instead be removed from the appellate title. This does not necessarily prejudice representation of the Estate of Francis Njuguna because the 1st and 4th Respondents are also described as administrators of that estate. Section 81 of the Law of Succession Act provides that upon the death of one of several administrators, the powers and duties vest in the surviving administrator or administrators. THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 8

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E. CONCLUSION 26. The court is of the opinion that the Applicant's appeal was validly instituted within the statutory 30 day period. There is consequently no basis for treating the Memorandum of Appeal as an appeal filed out of time. 27. The Applicant has, however, demonstrated considerable delay and want of diligence in filing and serving the Record of Appeal, and in complying with subsequent court directions. Such conduct warrants firm case-management orders. 28. As a result, the legally proportionate course is to regularise the Record of Appeal upon strict terms rather than prematurely terminating an appeal which was itself instituted within time. The approach accords with the procedural distinction recognised in Ochanda case and the strict case-management approach adopted in Digoi case. 29. As regards the 3rd Respondent, the appeal could not validly have been instituted against him because he was already deceased at the material time. His name should therefore be removed from the appellate proceedings, without prejudice to any substantive issue concerning his death during the lower court proceedings. F. DISPOSAL ORDERS 30. The court therefore makes the following disposal orders on the Notice of Motion dated 05.05.2026: THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 9

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a. The Record of Appeal annexed to the Notice of Motion dated 05.05.2026 shall be deemed as duly filed upon payment of the requisite court filing fees within fourteen (14) days from the date of the ruling. b. The Applicant shall serve the Record of Appeal upon the participating Respondents within seven (7) days of payment of the requisite filing fees. c. Upon compliance with the foregoing orders, the Deputy Registrar directions under Procedure Act shall list Section and Order the appeal for 79B of the Civil 42 of the Civil Procedure Rules. d. The name of Nicky Njuguna Mucha, the 3 rd Respondent, shall be struck out from the appellate title since he died before the appeal was filed. e. The costs of the application shall be costs in the appeal. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 1ST DAY OF OCTOBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr Odero for the Appellant THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 10

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Ms. Githi for the 1st and 4th Respondents No appearance for 2nd Respondent No appearance for 3rd Respondent (deceased) Court Assistant: Hinga THIKA ELC CASE NO. E137 OF 2025 (RULING) Page 11

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