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Court of AppealAllowedNot stated in the judgment

Mulama & 3 others v Viragi (Civil Application E152 of 2025) [2026] KECA 53 (KLR)

Court of Appeal of Kenya
29 January 2026
727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave land dispute appellants more time to file their appeal because delays in getting court documents were not their fault.

What this practically means

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Executive summary

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The applicants, aggrieved by a judgment of the Environment and Land Court at Kakamega delivered on 22nd October 2024, applied by notice of motion under Rule 4 of the Court of Appeal Rules for extension of time to file and serve the record of appeal. They had lodged and served a notice of appeal on the day of the judgment and requested typed copies of the proceedings, but the certified copies were only supplied in October 2025, prompting the application. The respondent opposed, arguing the applicants went to sleep after obtaining stay of execution orders, that the bespeaking letter was never served on him, and that the delay was inexcusable. The Court, applying the established Rule 4 principles (reason and length of delay, prejudice, arguability of the intended appeal, and the interests of justice), accepted that the delay in obtaining certified proceedings was beyond the applicants' control. It noted the applicants' oversight in not serving the bespeaking letter, which would have engaged the Rule 84(1) proviso excluding time spent procuring certified copies. Observing that land disputes should ideally be litigated to their conclusion and that any prejudice to the respondent could be compensated in damages, the Court allowed the application, granted leave to file and serve the record of appeal within twenty-one days, and awarded the respondent the costs of the application. The ruling is a single judgment of L. Kimaru, JA, delivered at Kisumu on 29th January 2026.

Questions the Court framed

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

  1. 1.Whether the applicants should be granted extension of time to file and serve the record of appeal out of time
  2. 2.Whether the reasons given for the delay are sufficient and whether the respondent would be prejudiced

Key legal issues

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01

Whether the applicants' delay in filing the record of appeal was adequately explained

Holding

The delay was attributable to the late supply of certified typed copies of the proceedings and judgment, which was beyond the applicants' control, and they moved the Court promptly on receipt of the copies.

Reasoning

The applicants requested typed proceedings after lodging the notice of appeal, but the certified copies were not supplied until October 2025, necessitating the extension application. The Court found the explanation satisfactory because the delay arose from the trial court registry's delay and the applicants acted immediately once the copies were obtained. The Court noted, however, that the applicants failed to serve the bespeaking letter on the respondent, which would have engaged the Rule 84(1) proviso.

p. 2
02

Whether the respondent would suffer prejudice if the extension were granted

Holding

The Court held that the land dispute should be litigated to its conclusion and any prejudice to the respondent can be compensated in damages.

Reasoning

The respondent argued that the applicants went to sleep after obtaining stay orders and that the delay was inexcusable. The Court weighed this against the nature of the dispute, which relates to land, and reasoned that land disputes should ideally be litigated to their conclusion. It concluded that any prejudice could be cured by an award of damages, so the extension was granted despite the length of the delay.

p. 2

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers an unfettered discretion to extend time, but it must be exercised in obedience to the laid-down principles: reason for delay, length of delay, prejudice to the respondent, whether the intended appeal is likely to succeed, and the interests of justice.
  • Under the proviso to Rule 84(1) of the Court of Appeal Rules, the time required to procure typed and certified copies of the proceedings and judgment from the trial court is excluded when computing time for lodging the record of appeal.
  • Any prejudice suffered by a respondent from an extension of time in a land dispute may be compensated by an award of damages.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicants are granted leave to file and serve the record of appeal out of time
  3. 3.The record of appeal shall be filed and served within twenty-one (21) days of the date of the ruling
  4. 4.The respondent shall have 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 (ELC), Kakamega
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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.

Rule 4 of the Court of Appeal Rules grants this Court unfettered discretion to grant or not grant an application seeking extension of time.
p. 2Discretion under Rule 4
the proviso of Rule 84(1) of the Court of Appeal Rules which excludes the time that it requires to procure the typed and certified copies of the proceedings and judgment from the trial Court when computing time
p. 2Computation of time under Rule 84(1)
The application has merit and is hereby allowed. The applicants are hereby granted leave to file and serve the record of appeal out of time. They shall do so within twenty-one (21) days of today’s date.
p. 2Final orders / disposition

Issues in the judgment

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minor

The judgment refers to the applicants' 'written submission' in the singular and to a letter bespeaking proceedings, but the notice of appeal and bespeaking letter dates beyond 22nd October 2024 are not precisely stated; the judgment also lacks a case number and neutral citation.

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, "Mulama & 3 others v Viragi (Civil Application E152 of 2025) [2026] KECA 53 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/53/eng@2026-01-29

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