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Court of AppealDismissedCivil Application (Rule 4) filed 14th November 2025, Nairobi

Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees (Civil Application E669 of 2025) [2026] KECA 458 (KLR)

Court of Appeal of Kenya
6 March 2026
1,524 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive Erdemann Property's late appeal because its notice of appeal had been struck out and the 143-day delay went unexplained.

What this practically means

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Executive summary

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This is a single-judge (Rule 4) decision of the Court of Appeal at Nairobi, delivered by Ongaya, JA on 6th March 2026, in which Erdemann Property Limited sought an extension of time to file an appeal against a Ruling of the Environment and Land Court at Machakos (Ochieng, J) of 24th June 2025, which had refused to reopen the applicant's case to allow the testimony of a quantity surveyor on a special damages claim of Kshs. 324,886,296. The respondent opposed on a preliminary point that the applicant's notice of appeal had already been struck out by the Court on 27th January 2026 in Civil Application No. E526 of 2025, and on the merits that the 143-day delay was unexplained, that counsel's alleged resignation was remote in time and unproven by affidavit, and that the application was an abuse of process aimed at delaying the primary suit. The applicant filed no submissions. The Court held that with the notice of appeal struck out, the intended appeal stood on no foundation and the extension could not be granted; further, the delay was not reasonably explained and counsel's resignation was not a valid excuse. The application was dismissed with costs to the respondent. No appeal succeeded and no authority was adopted by the Court beyond noting the respondent's reliance on the County Executive of Kisumu test, which was cited by a party only.

Questions the Court framed

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

  1. 1.Whether the applicant's notice of appeal having been struck out, an extension of time to file an appeal can still be granted
  2. 2.Whether the applicant gave a plausible and satisfactory explanation for the delay of 143 days in filing the application
  3. 3.Whether the resignation of the applicant's former counsel is a valid reason to excuse the delay

Key legal issues

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01

Effect of a struck-out notice of appeal on an extension of time application

Holding

The application was incompetent because the notice of appeal had been struck out, so the Court could not act in vacuo to grant extension of time to file the main appeal

Reasoning

The Court noted it was not disputed that the notice of appeal filed on 04.07.2025 had been struck out by an Order given on 27.01.2026 in Civil Application No. E526 of 2025 at the respondent's instance. With no surviving notice of appeal, the intended appeal had no foundation, and extension of time could not breathe life into it.

p. 4
02

Explanation for the delay

Holding

The delay of 143 days between the impugned Ruling (24.06.2025) and the application (14.11.2025) was not reasonably explained

Reasoning

The application was filed 143 days after the Ruling, and the letter requesting certified proceedings was filed some four months after the Ruling. The alleged resignation of counsel James Githui on 30.09.2025 was remote in time from the delay and unsupported by evidence; no affidavit from that counsel was filed. Accordingly the applicant failed the explanation limb of the extension-of-time test.

p. 4

Legal principles established

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  • Where the notice of appeal has been struck out, the Court cannot grant an extension of time to file the main appeal because the application stands on no foundation
  • An applicant for extension of time must show a plausible and satisfactory explanation for the delay; counsel's resignation remote in time from the delay does not suffice

Court orders

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  1. 1.The application dated 14th November 2025 was dismissed
  2. 2.Costs of the application awarded to the respondent

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, Machakos
Civil Suit No. 9 of 2019
Jurisdiction invoked
Article 50(1) of the Constitution, Sections 3, 3A and 3B of the Appellate Jurisdiction Act Cap. 9 and Rule 4 of the Court of Appeal Rules

Relief refused

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Extension of time to file an appeal against the Ruling and Orders of 24th June 2025

The notice of appeal had been struck out by the Court on 27th January 2026 in Civil Application No. E526 of 2025, leaving the intended appeal on no foundation, and the delay of 143 days was not reasonably explained

p. 4

Costs

Costs of the application awarded to the respondent ('the application dated 14.11. 2025 is hereby dismissed with costs for the respondent')

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.

It is not disputed that the applicant’s notice of appeal filed on 04.07.2025 was struck out by the Order of the Court given on 27.01.2026 in Civil Application No. E526 of 2025.
p. 4absence of a valid notice of appeal
The respondent has as well established that the alleged resignation of counsel is remote in time and therefore not a valid reason to explain the delay in issue.
p. 4counsel's resignation as an explanation for delay
In conclusion, the application dated 14.11. 2025 is hereby dismissed with costs for the respondent.
p. 4final orders

Issues in the judgment

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minor

The judgment states the hearing notice was dated 12.02.2020, which is inconsistent with the 2026 chronology of the matter and appears to be a typographical error for 2026

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, "Erdemann Property Limited v Safaricom Staff Pension Scheme Registered Trustees (Civil Application E669 of 2025) [2026] KECA 458 (KLR)", Case Analysis (2026). Civil Application (Rule 4) filed 14th November 2025, Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/458/eng@2026-03-06

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