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Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion application dated 13th January 2026

Ngomeni Swimmers Ltd v Khonde & another (Civil Appeal (Application) E001 of 2026) [2026] KECA 1177 (KLR)

Court of Appeal of Kenya
19 June 2026
2,247 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to forgive an 86-day filing delay, confirming that unexplained delay and an unarguable appeal will cost you your case.

What this practically means

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Executive summary

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This was a single-judge application under Rule 4 of the Court of Appeal Rules 2022 seeking extension of time to file a Notice of Appeal and Record of Appeal against a ruling of the Environment and Land Court at Malindi delivered on 15th February 2024, by which the Applicant's reference to taxation was struck out. The Applicant's initial Notice and Record of Appeal were struck out on 24th October 2025 for having been filed out of time without leave, and the present application was filed on 19th January 2026, 86 days later. Applying the settled principles from Salat, Fakir Mohammed, Mwangi (as stated in Leo Sila Mutiso) and Chemaringo, Okong'o JA held that the Rule 4 discretion, though unfettered, must be exercised judiciously. He found the 86-day delay inordinate and unexplained, holding the Applicant guilty of laches since equity aids the vigilant. On arguability, the court found the intended appeal not arguable: the notice of objection to taxation had been filed outside the 14 days prescribed by Rule 11(1) of the Advocates Remuneration Order without leave under Rule 11(4), rendering it irregular and incapable of supporting the reference. The issue before the ELC was a pure question of law on which the Applicant had no answer. The application was dismissed with costs to the Respondents. The decision below was not disturbed; the intended appeal remains incompetent.

Questions the Court framed

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

  1. 1.Whether the 86-day delay in bringing the application after the striking out of the initial Notice and Record of Appeal was inordinate and satisfactorily explained
  2. 2.Whether the intended appeal was arguable
  3. 3.Whether the Respondents would suffer prejudice if extension of time were granted

Key legal issues

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01

Whether the delay in seeking extension of time was inordinate and explained

Holding

The 86-day delay after the striking out was inordinate and unexplained; the Applicant was guilty of laches and undeserving of the equitable discretion

Reasoning

The Applicant's initial Notice and Record of Appeal were struck out on 24th October 2025 for being filed out of time without leave. The Applicant did not move the court immediately; the present application came 86 days later. No explanation was given for that delay. Equity aids the vigilant, and the Applicant, approaching the court for an equitable discretionary remedy, failed that standard.

p. 4
02

Whether the intended appeal was arguable

Holding

The intended appeal was not arguable: the only issue before the ELC was a pure point of law on non-compliance with Rule 11 of the Advocates Remuneration Order, on which the Applicant had no answer

Reasoning

The notice of objection to taxation was filed outside the 14 days prescribed by Rule 11(1) of the Advocates Remuneration Order, and no leave under Rule 11(4) was obtained. In the absence of leave the notice of objection was irregular and could not support the reference, which was struck out as incompetent. The issue being one of law, the Applicant had no answer before the ELC or this Court.

p. 4

Legal principles established

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  • Rule 4 grants the Court unfettered discretion to extend time, which must be exercised judiciously, considering length and reason for delay, arguability of the appeal and prejudice to the respondent

Court orders

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  1. 1.The Applicant's Notice of Motion application dated 13th January 2026 is dismissed with costs to the Respondents

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 at Malindi
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules 2022

Relief refused

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Extension of time to file a Notice of Appeal and Record of Appeal

The delay of 86 days was inordinate and unexplained; the Applicant was guilty of laches; and the intended appeal was not arguable

p. 4

Costs

The application is dismissed with costs to the Respondents

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 my finding that the delay of 86 days in filing the present application by the Applicant after the striking out of the Applicant’s initial Notice and Record of Appeal was inordinate.
p. 4inordinate delay
The Applicant has approached a court of equity for a discretionary remedy. Equity aids the vigilant. The Applicant is the opposite of that.
p. 4laches and equitable discretion
I find the intended appeal not arguable.
p. 5arguability of intended appeal
For the foregoing reasons, the Applicant’s Notice of Motion application dated 13th January 2026 has no merit. The same is dismissed with costs to the Respondents.
p. 5disposition and costs

Issues in the judgment

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minor

Party names are not fully stated; the parties are referred to only as 'the Applicant' and 'the Respondents' throughout, and the case number of the application before the Court of Appeal is not given

minor

The judgment refers to an application by the Respondents before the ELC dated 28th August 2025, which post-dates the ruling of 15th February 2024 said to be impugned, suggesting a date inconsistency

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, "Ngomeni Swimmers Ltd v Khonde & another (Civil Appeal (Application) E001 of 2026) [2026] KECA 1177 (KLR)", Case Analysis (2026). Notice of Motion application dated 13th January 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1177/eng@2026-06-19

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