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Court of AppealDismissedMotion on notice dated 4th February 2025 (arising from Nairobi ELC No. 357 of 2019)

Ndung’u (Suing as the Administrator Ad Litem of the Estate of John Ndung’u Mbugua) v Kinde Properties Limited (Civil Application E048 of 2025) [2025] KECA 1818 (KLR)

Court of Appeal of Kenya
7 November 2025
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to let a landowner appeal seven months late because he blamed his former lawyer without any supporting evidence.

What this practically means

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Executive summary

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This is a single-judge (Rule 4) ruling of the Court of Appeal at Nairobi delivered by F. SichaLe, JA on 7th November 2025, in which the applicant, David Kamau Ndung'u, sought leave to file an appeal out of time against a ruling of Lady Justice A. Omollo dated 11th July 2024 in Nairobi ELC No. 357 of 2019, together with an order deeming his annexed record of appeal as duly filed. The applicant attributed the delay to his previous advocate, who allegedly failed to file a Notice of Appeal and the appeal despite instructions and a deposit of Kshs 100,000. The respondent opposed, contending the application was made in bad faith, that no Notice of Appeal had ever been filed or served, and that the applicant occupied the suit premises illegally while the respondent's counter-claim for eviction remained pending. Applying the settled principles from Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found a delay of about seven months to be inordinate and the explanations unsubstantiated: no Notice of Appeal was annexed, no evidence of instructions or of the deposit was produced, and no explanation was given for the two-month lapse between the applicant's discovery of the non-filing and the filing of the motion. The court also found the respondent would suffer great prejudice as the eviction counter-claim would be held in abeyance, whereas the applicant, already in occupation, would suffer none. It declined to assess arguability, holding this could not be determined by a Single Judge. The motion was dismissed in its entirety with costs to the respondent.

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 leave to file an appeal out of time against the ruling of 11th July 2024
  2. 2.Whether the reasons given for the delay in filing the appeal were plausible
  3. 3.Whether the respondent would suffer prejudice if the extension of time were granted

Key legal issues

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01

Whether the delay of about 7 months in filing the appeal was explained

Holding

The delay was inordinate and the applicant's explanation, founded on alleged default by his previous advocate, was unsubstantiated and implausible.

Reasoning

The applicant failed to state when the alleged Notice of Appeal was filed or annex a copy, did not produce correspondence evidencing instructions to his former advocate, offered no proof of the Kshs 100,000 alleged deposit for the appeal, and gave no explanation for the two-month lapse between discovering non-filing on 19th December 2024 and filing the motion on 4th February 2025.

p. 3
02

Whether the respondent would suffer prejudice if extension were granted

Holding

The respondent would suffer great prejudice as the hearing of its counter-claim seeking the applicant's eviction would be held in abeyance, while the applicant, already in occupation, would suffer no prejudice.

Reasoning

The court weighed the prejudice: allowing the application would stall the counter-claim for eviction while the applicant continued occupying the suit premises; conversely the applicant was already in occupation and would suffer no prejudice from refusal of the extension. This tipped the discretionary balance against the applicant.

p. 3
03

Arguability of the intended appeal

Holding

The court declined to determine arguability, holding that a Single Judge cannot make such a determination on this application.

Reasoning

Although arguability is one of the Rule 4 considerations, the judge expressly declined to delve into it, stating that the issue could not be determined by a Single Judge in the circumstances, and instead disposed of the application on the grounds of unexplained delay and prejudice to the respondent.

p. 3

Legal principles established

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  • In deciding whether to extend time under Rule 4, the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent; the discretion is wide but must be exercised judiciously.

Court orders

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  1. 1.The applicant's motion dated 4th February 2025 is dismissed in its entirety
  2. 2.Costs of the application awarded to the respondent

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
Nairobi ELC No. 357 of 2019
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 5(2)(b), 41 and 49 of the Court of Appeal Rules 2022

Relief refused

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Leave to file appeal out of time

The delay of about 7 months was inordinate and the reasons given for it were not plausible or sufficiently explained

p. 3

Deeming the annexed record of appeal as duly filed

It was contingent on the extension of time being granted, which was refused

p. 4

Costs

Costs of the application to the respondent

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's motion dated 4th February 2025, is without merit and the same is hereby dismissed in its entirety with costs to the respondent.
p. 4Final orders - dismissal of the motion
first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.
p. 3Rule 4 extension of time principles
The Court has wide and unfettered discretion in deciding whether to extend time or not. However, in exercising its discretion, the Court should do so judiciously.
p. 2Nature of the Rule 4 discretion

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, "Ndung’u (Suing as the Administrator Ad Litem of the Estate of John Ndung’u Mbugua) v Kinde Properties Limited (Civil Application E048 of 2025) [2025] KECA 1818 (KLR)", Case Analysis (2025). Motion on notice dated 4th February 2025 (arising from Nairobi ELC No. 357 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1818/eng@2025-11-07

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