Wandwi Rioba & 4 others v Menganyi Nyamugiri Saimo
The bottom line
#Kenya's Court of Appeal gave landowners a second chance to appeal after their lawyer failed to tell them their case had been decided.
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 should be granted leave to lodge and serve a Notice and Memorandum of Appeal out of time
- 2.Whether the delay of about three months was inordinate and satisfactorily explained
- 3.Whether the intended appeal is arguable and whether the respondent would suffer prejudice if leave is granted
Key legal issues
#Jurisdiction to extend time
The Court has wide and unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time on such terms as it considers just.
The application was for extension of time to lodge and serve a Notice and Memorandum of Appeal out of time. The Court located its jurisdiction in Rule 4 of the Court of Appeal Rules, which clothes it with wide and unfettered discretion to extend time on just terms, and proceeded to apply the settled Mutiso principles.
Reason for delay - counsel's inadvertence
A plausible, uncontroverted explanation that former advocates failed to communicate the judgment justified excusing the delay.
The applicants deposed that their former advocates neither informed them of the judgment date nor communicated the outcome, and they learned of the judgment only on 24th March 2026 when visiting the advocates' offices. The explanation was plausible and uncontroverted, the respondent having filed no response.
Length of delay
A delay of about three months, explained as above, was not so inordinate as to disentitle the applicants to the discretion.
The judgment was delivered on 8th December 2025 and the application filed on 24th March 2026, a delay of about three months. Bearing in mind the explanation, the Court was not persuaded the delay was inordinate enough to bar the exercise of discretion in the applicants' favour.
Arguability of the intended appeal
It suffices that the intended appeal is not frivolous; the draft Memorandum raising property rights and occupation issues was prima facie arguable.
The Court held it unnecessary at this stage to determine the merits of the proposed appeal; it is sufficient that the appeal is not frivolous. The draft Memorandum raised complaints about breach of property rights and occupation of the suit property which prima facie deserved interrogation by the Court.
Prejudice to the respondent
No specific prejudice was demonstrated where the respondent filed no response despite service.
Despite being served with the hearing notice and directions, the respondent filed neither a replying affidavit nor any other opposing papers, and neither party filed submissions. In the absence of any response, no specific prejudice to the respondent was demonstrated if the application were allowed.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, guided by the length of delay, reason for delay, arguability of the appeal and prejudice to the respondent.
- Mistake or inadvertence of counsel does not automatically entitle a litigant to relief, but the Court may exercise discretion in favour of a litigant who offers a satisfactory explanation.
Court orders
#- 1.The Notice of Motion dated 24th March 2026 is allowed
- 2.Leave granted to lodge and serve a Notice and Memorandum of Appeal out of time against the judgment and decree of the Environment and Land Court at Migori delivered on 8th December 2025 in Migori ELCA No. E033 of 2024
- 3.The documents to be lodged and served within twenty-one (21) days from the date of the ruling
- 4.In default of compliance with the timelines, the leave granted shall automatically lapse without further order of the Court
- 5.Costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Migori
- Migori ELCA No. E033 of 2024
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (motion also invoked Articles 40, 47, 50 and 159(2)(d) of the Constitution)
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.
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
Mistake or inadvertence of counsel does not automatically entitle a litigant to relief.
I am not persuaded that the delay was so inordinate as to disentitle them to the exercise of the Court's discretion in their favour.
(i) The Notice of Motion dated 24th March 2026 is hereby allowed.
(v) Costs of the application shall abide the outcome of the intended appeal.
Issues in the judgment
#Duplicate applicant name - Nyamugiri Rioba appears as both 2nd and 4th applicant.
Page numbering inconsistent throughout the ruling.
Affidavit refers to trial court judgment in Kehancha CMC ELC No. E003 of 2023 while the impugned judgment is in Migori ELCA No. E033 of 2024; the chain of appeals is not fully explained.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandwi Rioba & 4 others v Menganyi Nyamugiri Saimo", Case Analysis (2026). Civil Application No. E065 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2108/eng@2026-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.