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Court of AppealAllowedNot stated in judgment (arising from Migori ELC No. 380 of 2017)

Mahegere & 5 others v Marwa (Civil Application E150 of 2025) [2026] KECA 186 (KLR)

Court of Appeal of Kenya
2 February 2026
LKL. Kimaru
642 words in judgment
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The bottom line

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Kenya's Court of Appeal gave late appellants more time to appeal because nobody told them the ruling date—uncontradicted excuses win.

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 at Kisumu delivered on 2nd February, 2026 by L. Kimaru, JA, on an application under Rule 4 of the Court of Appeal Rules for extension of time to lodge a notice of appeal out of time against a Ruling of the Environment and Land Court in Migori ELC No. 380 of 2017 delivered on 1st August, 2025. The applicants, who were acting in person in the proceedings below, explained that they were not informed of the date of delivery of the impugned Ruling and only learned of it when served with a notice of taxation of the respondent's bill of costs on 29th October, 2025, by which time the period for lodging the notice of appeal had expired. They immediately moved the Court. The respondent, Dr. Joel Makenge, opposed the application in a replying affidavit, contending that the explanation was implausible, that the applicants were fully seized of the conduct of the case, and that the application was made in bad faith to frustrate his enjoyment of his proprietary rights. The Court restated the principles guiding its unfettered but circumscribed discretion under Rule 4, as drawn from the Salat v. IEBC decision: the reason for delay, the length of delay, the arguability of the intended appeal and prejudice to the respondent. Finding that the respondent did not explicitly deny that the applicants were not informed of the delivery date, and that no contrary evidence was presented to discredit their averment that the Ruling was delivered in their absence, the Court held the application had merit. It allowed the application, granted leave to lodge the notice of appeal out of time, directed that the notice be filed and served within fourteen days, and made no orders as to costs.

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 lodge a notice of appeal out of time against the ELC Ruling of 1st August, 2025
  2. 2.Whether the reason given for the delay - failure by the Court to inform the applicants of the date of delivery of the Ruling - is excusable
  3. 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice if the extension is granted

Key legal issues

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01

Exercise of discretion under Rule 4 to extend time for filing a notice of appeal

Holding

Where the delay is attributable to the applicants not being informed of the date of delivery of the ruling, and the respondent does not explicitly deny that assertion or present contrary evidence, the reason for delay is excusable and extension of time should be granted.

Reasoning

The court restated the settled Salat principles governing Rule 4 applications: reason for delay, length of delay, arguability of the intended appeal and prejudice to the respondent. Applying them, the court found the applicants' explanation - that they only learned of the adverse ruling when served with a notice of taxation on 29th October, 2025 - was uncontradicted, as the respondent did not explicitly deny it and adduced no contrary evidence showing the applicants were informed of the delivery date. On that basis the application had merit.

p. 2

Legal principles established

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  • The Court's discretion under Rule 4 of the Court of Appeal Rules, though unfettered, is guided by the reason for delay, the length of delay, the arguability of the intended appeal and prejudice to the respondent.

Court orders

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  1. 1.The application is allowed
  2. 2.The applicants are granted leave to lodge the notice of appeal out of time
  3. 3.The applicants shall file and serve the said notice of appeal within fourteen (14) days of the date of the order
  4. 4.There shall be no orders as to costs

The bench

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

LK
majority

Wrote the judgment

On appeal from
Environment and Land Court
Migori ELC No. 380 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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 applicants are hereby granted leave to lodge the notice of appeal out of time. They shall file and serve the said notice of appeal within fourteen (14) days of today’s date. There shall be no orders as to cost.
p. 2Final orders - extension of time granted
These principles include, the reason for delay, the length of delay, the arguability of the intended appeal and if the respondent will sufier any prejudice.
p. 2Rule 4 principles for extension of time
No contrary evidence has been presented by the respondent to discredit the averment made by the applicants that the Ruling that is the subject of this application was delivered in their absence.
p. 2Uncontradicted explanation for delay accepted

Issues in the judgment

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minor

The judgment does not state the names of the applicants or the appeal/case number of the present application before the Court of Appeal; the ruling is identified only by reference to the decision appealed from.

minor

The judgment does not state whether the appeal is against the Ruling as a final decision or identify the decision's subject matter beyond the respondent's reference to proprietary rights.

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, "Mahegere & 5 others v Marwa (Civil Application E150 of 2025) [2026] KECA 186 (KLR)", Case Analysis (2026). Not stated in judgment (arising from Migori ELC No. 380 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/186/eng@2026-02-02

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