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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to file an appeal out of time against the ruling of 11th July 2024
- 2.Whether the reasons given for the delay in filing the appeal were plausible
- 3.Whether the respondent would suffer prejudice if the extension of time were granted
Key legal issues
#Whether the delay of about 7 months in filing the appeal was explained
The delay was inordinate and the applicant's explanation, founded on alleged default by his previous advocate, was unsubstantiated and implausible.
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.
Whether the respondent would suffer prejudice if extension were granted
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.
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.
Arguability of the intended appeal
The court declined to determine arguability, holding that a Single Judge cannot make such a determination on this application.
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.
Legal principles established
#- 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
#- 1.The applicant's motion dated 4th February 2025 is dismissed in its entirety
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Deeming the annexed record of appeal as duly filed
It was contingent on the extension of time being granted, which was refused
Costs
Costs of the application to the respondent
Quotable passages
#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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.