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Court of AppealDismissedNot stated in the judgment (application dated 2nd February 2026)· [2026] KECA 742 (KLR)

& 4 Others & 4 Others & 4 Others v Ipitiet Ole Kilongu Alias Ipite Ole Kiloku & 10 Others & 10

Court of Appeal of Kenya
23 April 2026
2,258 words in judgment
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The bottom line

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The Court of Appeal refused to excuse a long delay in filing an appeal because the applicants explained only part of it and had earlier chosen review instead.

What this practically means

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Executive summary

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The applicants sought leave under Rule 4 of the Court of Appeal Rules, 2022 to file a notice of appeal and memorandum of appeal out of time against a judgment of Hon. Anthony Ombwayo J. delivered on 16th October 2024 in Nakuru ELC No. 39 of 2020, which ordered cancellation of their titles to land parcels Maela/Ndabibi Block 5/2253 and 3073 and directed that title deeds issue to the seventeen defendants in HCCC No. 89 of 1996 to hold in trust for all beneficiaries. The applicants' history included a successful earlier appeal (Nakuru Civil Appeal No. 64 of 2004) declaring them adverse possessors. After the 2024 judgment they elected to pursue a series of applications in the High Court: a review application dismissed on 9th May 2025; an application for revocation of individual titles allowed on 14th November 2025; and a respondents' review which on 15th January 2026 reinstated the cancelled titles - the ruling now sought to be appealed. The respondents opposed, arguing serial applications, that a litigant cannot appeal and seek review simultaneously, and that execution was complete. J. Mativo JA applied the Salat guidelines on extension of time. He held that a plausible explanation covering the entire period of delay is the key that unlocks the discretion, that even a one-day delay must be explained, and that the applicants - who filed no notice of appeal against the ruling and no letter bespeaking proceedings - had exercised party autonomy in choosing review over appeal; their decision to appeal was an afterthought. He declined to determine whether review and appeal can coexist or whether the earlier appeal rendered matters res judicata, leaving those as live questions in any filed appeal. Finding prejudice (titles cancelled, execution complete) and that litigation must come to a close, he dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the applicants' pursuit of review applications constituted a reasonable explanation for the delay in filing the appeal

Holding

It did not. The applicants exercised party autonomy in electing review instead of appeal; they filed no notice of appeal against the ruling sought to be appealed and no letter bespeaking proceedings, so the delay was unexplained and the decision to appeal was an afterthought.

Reasoning

The court held that a litigant is master of their own case and free to choose litigation strategy, but must live with the consequences of that choice. An applicant seeking extension of time must give a full, reasonable and acceptable explanation covering the entire period of delay. Here there was no notice of appeal against the ruling, no letter requesting proceedings, and the election of review was a voluntary exercise of party autonomy, not an excuse. The decision to appeal was therefore an afterthought and the discretion would not be exercised in the applicants' favour.

p. 4
02

The principles governing extension of time under Rule 4 of the Court of Appeal Rules, 2022

Holding

Extension of time is a discretionary equitable remedy governed by the Salat considerations; a plausible explanation for the whole period of delay is the key that unlocks the balancing exercise, but it is not the sole factor.

Reasoning

The court adopted the Supreme Court's Salat guidelines and reiterated that a plausible, reasonable and comprehensive explanation is crucial though not the sole trigger of the discretion. The enquiry into reasonableness is factual. Once a plausible explanation exists, the court may consider prospects of success; absent one, the indulgence is generally refused even where the appeal has merit. Hard-earned judgments should not be lightly disturbed, and prejudice to the respondent must be assessed.

p. 4
03

Whether the court should determine whether a litigant can pursue a review and an appeal simultaneously, and whether the dispute was res judicata given Civil Appeal No. 64 of 2004

Holding

No - those questions were left open as potentially live questions in the intended appeal and were not for determination on an extension-of-time application.

Reasoning

The judge expressly restrained himself from determining whether a party can pursue both review and appeal, whether the applicants made the right choice, and whether the Court of Appeal's earlier decision in Civil Appeal No. 64 of 2004 precluded the litigation, holding these may be live questions should the appeal be filed. Only the extension-of-time discretion fell within his remit, along with consideration of the appeal's prospects of success.

p. 4
04

Prejudice and finality of litigation

Holding

Granting the extension would unfairly prejudice the respondents because the impugned titles had already been cancelled and execution was complete; litigation must come to a close.

Reasoning

As part of the Salat balancing, the court assessed whether granting the extension would unfairly prejudice the other party. It accepted the respondents' position that the titles had been cancelled, meaning execution was complete, and invoked the principle that litigation must come to a close. Together with the unexplained delay, this weighed decisively against the exercise of discretion in the applicants' favour.

p. 4

Legal principles established

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  • Extension of time under Rule 4 is an equitable discretionary remedy, not a right, and an applicant must lay a basis to the satisfaction of the court, with the delay explained to the court's satisfaction and prejudice, undue delay and public interest considered on a case-to-case basis
  • A plausible explanation covering the entire period of the delay is the key that unlocks the court's discretion; without it the indulgence will generally be refused even where the intended appeal has prospects of success
  • The explanation must cover the entire period of the delay; explaining only part of it is far from satisfactory, and even a one-day delay must be explained
  • The governing standard under Rule 4 is the interests of justice, requiring the court to balance the explanation for the delay, prospects of success, the importance of the case and prejudice to the parties

Court orders

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  1. 1.The applicants' application dated 2nd February 2026 is dismissed with costs to the respondents
On appeal from
Environment and Land Court (High Court), Nakuru
ELC No. 39 of 2020 (judgment of Hon. Anthony Ombwayo J. delivered 16th October 2024)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time)

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, "& 4 Others & 4 Others & 4 Others v Ipitiet Ole Kilongu Alias Ipite Ole Kiloku & 10 Others & 10", Case Analysis (2026). Not stated in the judgment (application dated 2nd February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/742/eng@2026-04-23

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