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Court of AppealDismissedCivil Application E013 of 2026

Thomas v Jilani & another

Court of Appeal
25 September 2026
1,330 words in judgment
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The bottom line

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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 Malindi (Laibuta, JA) on the applicant's Notice of Motion dated 9th April 2026 seeking extension of time to file and serve a Record of Appeal from the judgment and decree of the Environment and Land Court at Malindi (Evans Makori, J.) delivered on 9th December 2024. The applicant filed a notice of appeal on 10th December 2024 and requested certified proceedings through her then advocates; after changing representation in mid-2025, her new advocates wrote to the ELC in July 2025. The court noted that certified copies had been released to her former counsel in June 2025, yet no record of appeal was filed more than a year later, and the record contained no certificate of delay to ascertain the actual period of delay since the notice of appeal lodged in December 2024. Applying the Leo Sila Mutiso factors under Rule 4 of the Court of Appeal Rules, the court held the intended appeal arguable but held that the applicant must first surmount the hurdle of delay, which was inordinate and insufficiently explained. No undue prejudice was shown by the respondents, but the public interest in finality of litigation weighed against extension. The application was dismissed with costs to the 1st respondent. The 2nd respondent did not file papers but made oral submissions in opposition.

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 should be granted extension of time to file and serve a Record of Appeal out of time
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the delay in filing the Record of Appeal has been satisfactorily explained
  4. 4.Whether the respondents would suffer undue prejudice if the extension is granted

Key legal issues

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01

Sufficiency of explanation for inordinate delay

Holding

The delay of over a year after certified proceedings were released to counsel, with no certificate of delay on the record, was inordinate and unexplained, defeating the application despite an arguable appeal

Reasoning

The court traced the chronology: notice of appeal filed December 2024, proceedings requested December 2024, released to former counsel June 2025, yet no record of appeal filed more than a year later. The record lacked a certificate of delay to ascertain the actual period. Arguability alone cannot overcome unexplained inordinate delay; the applicant must first surmount the delay hurdle.

p. 2
02

Factors for extension of time under Rule 4

Holding

The court applies the Leo Sila Mutiso factors: length of delay, reason for delay, chances of appeal succeeding, and degree of prejudice, with the discretion unfettered and factors non-exhaustive

Reasoning

The court restated the established Rule 4 framework from Leo Sila Mutiso v Helen Wangari Mwangi, reinforced by Fakir Mohammed v Joseph Mugambi, and the Salat principles underscoring the public interest in finality of litigation. Prejudice was not shown by the respondents, but finality of litigation weighed against extension given the unexplained delay.

p. 2

Legal principles established

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  • Rule 4 confers an unfettered discretion on the Court to extend time for doing any act authorised or required by the Rules, on such terms as it thinks just
  • An applicant for extension of time need only demonstrate an arguable appeal with likelihood of success; whether it will succeed is not for the single judge to judge
  • There is no minimum or maximum period of delay; any delay must be satisfactorily explained, and a plausible explanation is the key that unlocks the Court's discretionary favour

Court orders

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  1. 1.The applicant's Notice of Motion dated 9th April 2026 seeking extension of time to file and serve a Record of Appeal is dismissed
  2. 2.Costs of the application awarded to the 1st 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 at Malindi
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

Relief refused

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Extension of time to file and serve the Record of Appeal

The delay was inordinate and not sufficiently explained; no certificate of delay was on the record and no steps were taken for over a year after proceedings were released to counsel

p. 3

Costs

Dismissed with costs to the 1st 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.

I come to the inescapable conclusion that the applicant’s Notice of Motion dated 9th April 2026 fails and is hereby dismissed with costs to the 1st respondent.
p. 3Final orders - dismissal of the extension-of-time application
I can only conclude that the delay is inordinate, and has not been sufficiently explained.
p. 3Unexplained inordinate delay
Whether or not it will succeed in whole or in part is not for me to judge.
p. 2Scope of arguability assessment on single-judge applications

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, "Thomas v Jilani & another", Case Analysis (2026). Civil Application E013 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1793/eng@2026-09-25

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