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Court of AppealAllowedCivil Application (Rule 4 extension of time), application dated 17th December 2024

Athi Water Works Development Agency v Kamau (Civil Application E703 of 2024) [2025] KECA 1557 (KLR)

Court of Appeal of Kenya
3 October 2025
1,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a state agency to file its appeal notice one day late, confirming that short, honestly explained delays will usually be forgiven.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal (P. Nyamweya JA, Nairobi) on an application under Rule 4 of the Court of Appeal Rules, 2022 by Athi Water Works Development Agency seeking extension of time to file a Notice of Appeal against the judgment of the Environment and Land Court (D.M. Mwangi J.) delivered on 26th November 2024 in Nairobi ELC Appeal No. E064 of 2021, which had allowed an appeal by Samuel Macharia Kamau and awarded him Kshs 8,050,000/= for trespass, setting aside the Chief Magistrate's Court judgment in Nairobi MCELC No. 2506 of 2019. The applicant's advocate acknowledged that the Notice of Appeal dated 11th December 2024 was filed fifteen hours and thirteen minutes late due to his miscalculation of the 14-day period under Rule 77(2), which lapsed on 10th December 2024, and the Rule 4 application itself was filed seven days after the lapse. The application was unopposed; the respondent filed neither a response nor submissions and demonstrated no prejudice. Applying the principles in Nicholas Kiptoo Arap Korir Salat v IEBC and Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, the court found the delay not inordinate and sufficiently explained, granted leave to file and serve the Notice of Appeal out of time, deemed the Notice of Appeal dated 11th December 2024 as duly filed and served, and made no order as to costs. The decision below was not disturbed; this was an interlocutory application on the exercise of discretion.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted extension of time to file a Notice of Appeal against the judgment of the Environment and Land Court delivered on 26th November 2024
  2. 2.Alternatively, whether the Notice of Appeal dated 11th December 2024 should be deemed as duly filed and served

Key legal issues

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01

Whether sufficient cause was shown for a delay of fifteen (15) hours and thirteen (13) minutes in filing the Notice of Appeal, and seven days in bringing the application

Holding

Yes. The delay was not inordinate; the explanation (advocate's miscalculation of the 14-day period under Rule 77(2)) was undisputed and the respondent neither opposed the application nor demonstrated prejudice.

Reasoning

The court applied the Salat principles from the Supreme Court and the Mutiso discretion. The Notice of Appeal was filed one day outside the 14-day period prescribed by Rule 77(2), and the application was lodged seven days after the lapse. The explanation was an advocate's acknowledged mistake, promptly realised and corrected. The explanation was uncontroverted, no prejudice was demonstrated by the respondent, and the application was brought without undue delay, warranting the grant of leave and a deeming order.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available to a deserving party at the discretion of the court, exercised on a case-to-case basis considering length and reason for delay, prejudice, undue delay and public interest
  • Any delay in filing an appeal must be satisfactorily explained; a plausible and satisfactory explanation is the key to the exercise of the court's discretion

Court orders

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  1. 1.Leave granted to the applicant to file and serve a Notice of Appeal out of time against the judgment delivered on 26th November 2024 by the Environment and Land Court (D.M. Mwangi J.) in Nairobi ELC Appeal No. E064 of 2021
  2. 2.The applicant's Notice of Appeal dated 11th December 2024 and served upon the respondent on 13th December 2024 deemed as having been duly filed and served
  3. 3.No order as to the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Environment and Land Court
Nairobi ELC Appeal No. E064 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicant is accordingly granted leave to file and serve a Notice of Appeal out of time against the judgment delivered on 26th November 2024 by the Environment and Land Court (D.M. Mwangi J.) in Nairobi ELC Appeal No. E064 of 2021.
p. 3Final orders - leave to appeal out of time granted
The applicant’s Notice of Appeal dated 11th December 2024 and served upon the respondent on 13th December 2024 is accordingly deemed as having been duly filed and served. There shall be no order as to the costs of the application.
p. 3Deeming order and costs
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.
p. 3Test for extension of time
the decision whether or not to extend time for appealing is essentially discretionary, taking into account the length of delay and reason for the delay.
p. 2Discretionary nature of extension of time

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Athi Water Works Development Agency v Kamau (Civil Application E703 of 2024) [2025] KECA 1557 (KLR)", Case Analysis (2025). Civil Application (Rule 4 extension of time), application dated 17th December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1557/eng@2025-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.