Linti & 4 others v Kilongu alias Ipite ole Kiloku & 10 others (Civil Application E022 of 2026) [2026] KECA 742 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have given a plausible, reasonable and comprehensive explanation for the delay in filing the notice of appeal and memorandum of appeal out of time
- 2.Whether the applicants should be granted leave to file a notice of appeal and memorandum of appeal out of time and have the annexed documents deemed duly filed and served
- 3.Who should bear the costs of the application
Key legal issues
#Whether the applicants' pursuit of review applications constituted a reasonable explanation for the delay in filing the appeal
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.
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.
The principles governing extension of time under Rule 4 of the Court of Appeal Rules, 2022
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.
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.
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
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.
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.
Prejudice and finality of litigation
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.
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.
Legal principles established
#- 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
#- 1.The applicants' application dated 2nd February 2026 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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)
Relief refused
#Leave to file a notice of appeal and memorandum of appeal out of time against the judgment delivered on 16th October 2024, and that the annexed notice and memorandum of appeal be deemed duly filed and served upon payment of requisite Court fees
The applicants gave no acceptable explanation covering the entire period of delay; they opted to pursue review applications instead of appealing, and the decision to appeal appears to be an afterthought; the titles have been cancelled so execution is complete and litigation must come to a close
Costs of the application to be in the intended appeal
The application was dismissed with costs to the respondents
Costs
Dismissed with costs to the respondents
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.
A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise. If the explanation for the delay is not plausible (i.e., it is weak, contradictory, or nonexistent), the Court usually will not exercise its discretion to extend time, even if the appeal has merit.
It is important to emphasize that condonation for delay is not a right, and that "hard-earned judgments" should not be lightly disturbed or enjoyment of the fruits of the judgment delayed.
Even a one-day delay must be explained.
Accordingly, I am not inclined to exercise my discretion in the applicants’ favour. The applicants’ application dated 2nd February 2026 is hereby dismissed with costs to the respondents.
Issues in the judgment
#The judgment gives conflicting dates for the judgment sought to be appealed, describing it as delivered on 16th October 2024 in one passage and 24th October 2024 in another
The judgment gives conflicting dates for the ruling whose reinstatement of titles the applicants seek to appeal, described as delivered on 15th January 2025 in one passage and 15th January 2026 in another
The judgment refers to an application dated 14th July 2005, which on the chronology must be 14th July 2025
The judgment records that a review application dated 27th January 2025 was dismissed by a ruling delivered on 9th May 2025, but paragraph 4 states the application was confirmed by the respondents' affidavit dated 11th December 2025, an unexplained internal chronology anomaly
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Linti & 4 others v Kilongu alias Ipite ole Kiloku & 10 others (Civil Application E022 of 2026) [2026] KECA 742 (KLR)", 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.