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Court of AppealPartially AllowedApplication dated 17th November 2025 (in intended appeal from ELC Appeal No. 6 of 2018)

Mbugua v Kabecho Housing Company Ltd & 2 others (Civil Application E009 of 2026) [2026] KECA 741 (KLR)

Court of Appeal of Kenya
23 April 2026
1,132 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a landowner more time to appeal after he missed a judgment he was never told about, confirming missing notice justifies 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 Nakuru (Mativo, JA) on an application by George Gitau Mbugua for extension of time to file and serve a notice of appeal against the judgment of Lady Justice M.A. Odeny delivered on 13th August 2025 in ELC Appeal No. 6 of 2018. The applicant explained that he was never served with notice of the judgment delivery date; the matter was not listed in the cause list, judgment was delivered during the court vacation, and his advocates only became aware of the judgment upon seeing it on the CTS portal. The respondent filed no reply by the time of the ruling, though affidavits of service by email were on record. The court applied Rule 4 of the Court of Appeal Rules, 2022 and the Supreme Court's criteria in the Salat case, restating that extension of time is an equitable remedy, not a right, that the applicant bears the burden of explaining the entire period of delay, and that a plausible explanation unlocks consideration of other factors such as prospects of success. Finding the explanation highly plausible because the judgment was delivered without notice and during the recess, the court allowed the application and extended time by 7 days from the date of the ruling to file the notice of appeal, with costs of the application to abide the outcome of the intended appeal. The decision below was not disturbed; the ruling concerns only access to the appellate process.

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 has given a plausible and reasonable explanation for the delay in filing the notice of appeal
  2. 2.Whether the Court should exercise its discretion under Rule 4 to extend time to file and serve the notice of appeal and deem the notice filed on 10th September 2025 as duly filed and served

Key legal issues

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01

Whether the delay in filing the notice of appeal was explained to the satisfaction of the Court

Holding

Yes. The judgment was delivered without notice to the applicant, during the court vacation, with no cause list entry; the explanation was found highly plausible, triggering the exercise of discretion in the applicant's favour.

Reasoning

The applicant was never served with notice of the judgment delivery date; the matter was not listed in the cause list of 24th July 2025 and judgment was read during the recess. The court held that a plausible, reasonable and comprehensive explanation is crucial though not the sole factor; once a plausible explanation exists, the court may look at other factors such as prospects of success. A judgment delivered without notice to a party constitutes a reason beyond the applicant's control, and no prejudice to the respondent was demonstrated.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available only to a deserving party at the court's discretion; the applicant bears the burden of explaining the whole period of the delay to the court's satisfaction.
  • A plausible, reasonable and comprehensive explanation covering the entire period of delay is a crucial, though not the sole, factor triggering the discretion to extend time; once plausibility is established, the court may consider other factors such as prospects of success.

Court orders

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  1. 1.The application dated 17th November 2025 is allowed
  2. 2.Time is extended to the applicant to file his notice of appeal within 7 days from the date of the ruling
  3. 3.The costs of the application shall abide the outcome of the appeal

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 Appeal No. 6 of 2018
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Relief refused

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Prayer that the notice of appeal dated and filed on 10th September 2025 be deemed as duly filed and served within time

The ruling only expressly grants extension of time to file the notice of appeal within 7 days; the court did not expressly pronounce on the deeming prayer or the filing date sought

p. 3

Costs

The costs of this application shall abide the outcome of the appeal.

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.

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
It must cover the entire period of the delay. Explaining only part of the period of delay is "far from satisfactory" and most likely, it will not justify the extension.
p. 3Explanation must cover whole delay
Therefore, I allow the application dated 17th November 2025 and extent time to the applicant to file his notice of appeal within 7 days from the date of this ruling. The costs of this application shall abide the outcome of the appeal.
p. 3Final orders

Issues in the judgment

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minor

The ruling is dated '23RD DAY OF APRIL 2026' but records an application dated 17th November 2025 against a judgment of 13th August 2025; the listed application date (November 2025) is chronologically possible but the certification block appears on the ruling itself, and the respondent is never named, making identification of the parties incomplete.

minor

The ruling refers to directions taken in the absence of the 2nd and 3rd respondents although only one respondent is otherwise referenced, and the numbering of the Salat considerations is incomplete and irregular (jumps from (b) to (ii), (iv), (v), (vi), (vii)).

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, "Mbugua v Kabecho Housing Company Ltd & 2 others (Civil Application E009 of 2026) [2026] KECA 741 (KLR)", Case Analysis (2026). Application dated 17th November 2025 (in intended appeal from ELC Appeal No. 6 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/741/eng@2026-04-23

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