Lwangu v Ndote & 23 others (Civil Application E090 of 2025) [2026] KECA 397 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the applicant has given a plausible and sufficient explanation for the delay in filing the notice of appeal and record of appeal
- 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
#Governing rules for applications in the Court of Appeal
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
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.
Test for extension of time
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
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.
Whether the applicant's explanation was plausible
Yes - ill-health, absence from the country for medical treatment, and misdirection by previous counsel accounted for the delay
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.
Legal principles established
#- 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
#- 1.The application dated 23rd December 2025 is allowed
- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#Order that the costs of the application be in the intended appeal
The court instead made no order as to costs
Costs
No order as to costs.
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 is hereby granted leave to file and serve the record of appeal within 45 days from today. No order as to costs.
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
A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise.
I must emphasize that condonation is not a right, and that "hard-earned judgments" should not be lightly disturbed.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.