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Court of AppealPartially AllowedNot stated in the judgment as provided (application dated 23rd December 2025)

Lwangu v Ndote & 23 others (Civil Application E090 of 2025) [2026] KECA 397 (KLR)

Court of Appeal of Kenya
5 March 2026
1,212 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a delayed appellant 45 more days to file her record of appeal because she explained every day of the delay.

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 Eldoret (Mativo, JA) on an application dated 23rd December 2025 seeking leave to file and serve a notice of appeal and record of appeal out of time against the judgment of the Environment and Land Court at Kitale in ELC No. 79 of 2010 delivered on 24th March 2025, which ordered cancellation of the applicant's title to LR No. Trans-Nzoia/Sinyerere/715 and its reversion to the Estate of Jeridah Kilisa Ndote. The applicant attributed the delay to ill-health and absence from Kenya for medical treatment, and to misdirection by previous counsel who failed to advise on statutory timelines and instead pursued an ultimately unsuccessful stay application. The respondents opposed, contending the application was defective, having been brought under Order 51 Rule 1 of the Civil Procedure Rules, 2010, and that the delay was inordinate. The judge noted that Order 51 Rule 1 does not apply to Court of Appeal proceedings, which are governed by the Court of Appeal Rules, 2022, and determined the application under Rules 4 and 41. Applying the Salat criteria, the court held that extension of time is an equitable, discretionary remedy, that the applicant bears the burden of explaining the entire period of delay, and that a plausible explanation is the key that unlocks the balancing exercise under the interests of justice. Finding the applicant's explanation plausible, the court allowed the application and granted leave to file and serve the record of appeal within 45 days, with no order as to costs. This is an interlocutory, discretionary decision and does not establish a binding precedent in the manner of a full panel judgment.

Questions the Court framed

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

  1. 1.Whether the application should have been brought under the Court of Appeal Rules, 2022 rather than Order 51 Rule 1 of the Civil Procedure Rules, 2010
  2. 2.Whether the applicant has given a plausible and sufficient explanation for the delay in filing the notice of appeal and record of appeal
  3. 3.Whether the Court should exercise its discretion under Rule 4 to extend time to file and serve a record of appeal out of time

Key legal issues

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01

Governing rules for applications in the Court of Appeal

Holding

Order 51 Rule 1 of the Civil Procedure Rules, 2010 does not apply to Court of Appeal proceedings, which are governed by the Court of Appeal Rules, 2022

Reasoning

The applicant had invoked Order 51 Rule 1 of the Civil Procedure Rules, 2010. The single judge pointed out that these provisions are inapplicable to proceedings before the Court of Appeal, which are governed exclusively by the Court of Appeal Rules, 2022, under which the application was in any event properly considered (Rules 4 and 41). The defect did not defeat the application.

p. 1
02

Test for extension of time

Holding

The Salat criteria apply: extension of time is discretionary and equitable; the applicant bears the burden; the delay must be reasonably explained; prejudice, undue delay in bringing the application and public interest are considered

Reasoning

The court adopted the seven Salat factors as the governing framework. It emphasised that a plausible, reasonable and comprehensive explanation covering the entire period of delay is the crucial trigger for the discretion; prospects of success are considered only once plausibility is established. The standard is the interests of justice, balancing explanation, prospects, importance of the case and prejudice.

p. 3
03

Whether the applicant's explanation was plausible

Holding

Yes - ill-health, absence from the country for medical treatment, and misdirection by previous counsel accounted for the delay

Reasoning

The applicant explained that previous counsel failed to advise on statutory timelines and instead pursued an unsuccessful stay application, and that she was out of the country for medical treatment and only learnt of the lapsed timelines upon engaging new counsel. The judge found these reasons plausible and exercised his discretion in her favour, granting 45 days to file and serve the record of appeal.

p. 3

Legal principles established

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  • Extension of time is an equitable, discretionary remedy, not a right, and the applicant bears the burden of laying a basis for it
  • A plausible explanation for the whole period of delay is the key that unlocks the court's discretion; without one, extension will generally be refused even where the appeal has merit
  • The explanation must cover the entire period of the delay; a partial explanation is insufficient

Court orders

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  1. 1.The application dated 23rd December 2025 is allowed
  2. 2.The applicant is granted leave to file and serve the record of appeal within 45 days from the date of the ruling

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
Kitale ELC No. 79 of 2010
Jurisdiction invoked
Rules 4 and 41 of the Court of Appeal Rules, 2022

Relief refused

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Order that the costs of the application be in the intended appeal

The court instead made no order as to costs

p. 3

Costs

No order as to costs.

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 hereby granted leave to file and serve the record of appeal within 45 days from today. No order as to costs.
p. 3Final orders - extension of time granted
Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court
p. 2Nature of extension of time
A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise.
p. 3Role of plausible explanation in the discretion
I must emphasize that condonation is not a right, and that "hard-earned judgments" should not be lightly disturbed.
p. 3Condonation and finality of judgments

Issues in the judgment

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minor

The body of the ruling records the respondents' replying affidavit as dated 3rd March 2026, which post-dates the application date of 23rd December 2025 but is consistent with the delivery date; the case number of this application and the parties' names are not stated in the text.

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, "Lwangu v Ndote & 23 others (Civil Application E090 of 2025) [2026] KECA 397 (KLR)", Case Analysis (2026). Not stated in the judgment as provided (application dated 23rd December 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/397/eng@2026-03-05

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