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ELCDismissedKehancha PMC ELC No. 15 of 2015 (appeal therefrom; Notice of Motion dated 19th July 2025)

Tingo v Machera (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 1530 (KLR)

High Court of Kenya
26 February 2026
2,781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a prisoner's late appeal because he waited over a year after receiving court documents without explaining the delay.

What this practically means

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Executive summary

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The applicant, Lucas Mwita Machera, an inmate serving a sentence at Naivasha Maximum Prison, brought a Notice of Motion dated 19th July 2025 seeking leave to file an appeal out of time against the judgment of the trial court in Kehancha PMC ELC No. 15 of 2015 delivered on 30th November 2023, plus costs. He attributed the delay to inability to communicate with his advocate while incarcerated, to difficulties obtaining a complete copy of the proceedings and judgment, and to his counsel's uncertainty whether to appeal or seek review. He relied on section 95 of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules and Mutiso v Mwangi. The respondent opposed, contending that the applicant's advocates were on record throughout, that certified proceedings and judgment were issued on 1st March 2024 and received on 22nd April 2024, and that the application, filed on 19th July 2025, was an afterthought and abuse of process. The court identified the sole issue as whether to enlarge time. Applying section 79G of the Civil Procedure Act and the principles in Edith Gichungu Koine v Stephen Njagi Thoiti and Nicholas Kiptoo Arap Salat v IEBC, the court held the application was not filed promptly and no reasonable explanation for the delay was given. It found the claim of lack of instructions absurd given counsel had acted to extract certified proceedings, and held that setting aside a two-year-old judgment without justification would prejudice the respondent. Prayer 2 was declined with costs to the applicant.

Questions the Court framed

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

  1. 1.Whether this court should exercise its power to enlarge time to allow the applicant to file his appeal out of time
  2. 2.Question on costs of the application

Key legal issues

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01

Whether the court should enlarge time to allow filing of an appeal out of time under section 79G of the Civil Procedure Act

Holding

The application was declined because the delay was inordinate and unexplained; the applicant did not act promptly even after receipt of certified copies of the proceedings and judgment

Reasoning

The court accepted the certificate of delay showed proceedings applied for on 23rd December 2023 and received by counsel on 22nd April 2024. Yet the application was not lodged until 19th July 2025, a delay of over one year and six months after receipt. The claim of lack of communication with incarcerated counsel was rejected as inconsistent with counsel acting to extract proceedings and communicating during the trial hearing. Setting aside a judgment rendered over two years earlier without reasonable justification would prejudice the respondent.

p. 6
02

Whether incarceration of the applicant constituted good and sufficient cause for the delay

Holding

No - the applicant failed to explain why communication with counsel was possible during the trial but impossible when the need to appeal arose

Reasoning

The court acknowledged that communicating with an incarcerated client may be challenging, but found the applicant did not explain the circumstances making communication possible during the lower court hearing (including virtual testimony from Naivasha Maximum Prison) yet impossible afterwards. Counsel's application for certified proceedings demonstrated the applicant was giving instructions, undermining the claim of no instructions.

p. 5

Legal principles established

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  • An appeal out of time may be admitted if the appellant shows good and sufficient cause; enlargement of time is discretionary and guided by the period of delay, reasons for the delay, prejudice to the respondent, and promptitude of the application
  • A litigant who instructs counsel to obtain certified proceedings for appeal cannot credibly claim he could not instruct counsel to file the appeal

Court orders

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  1. 1.Prayer 2 of the applicant's application (leave to file an appeal out of time) is declined
  2. 2.The costs of the application are to be borne by the Applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules (inherent power to enlarge time)

Relief refused

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Leave to file an appeal out of time

The application was not filed promptly and no reasonable explanation for the delay was given; counsel received certified proceedings and judgment on 22nd April 2024 but the application was only filed on 19th July 2025

p. 6

Costs of the application

Costs awarded against the applicant as the unsuccessful party

p. 6

Costs

The costs of the application are to be borne by Applicant.

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.

The court therefore finds that the application was not filed promptly and there is no reasonable explanation for the delay. The upshot of the foregoing is that prayer 2 of the applicant’s application is declined.
p. 6Disposition - extension of time refused
The costs of the application are to be borne by Applicant.
p. 6Costs order
If the applicant was able to instruct his advocate to extract the aforesaid certified copies for purposes of appeal while in prison, he should also have been able to instruct his advocate to file the appeal.
p. 5Incarceration and instructions to counsel
Given the above set of circumstances, it would be prejudicial to respondent were the court to set aside a judgment that was rendered more than two years ago, absent a reasonable justification for doing so.
p. 6Prejudice to respondent from enlargement of time

Issues in the judgment

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minor

The judgment states the trial judgment was delivered on 30th November 2023 in one place but the respondent's affidavit refers to judgment 'rendered on 30th November 2026', which the court does not resolve

minor

Inconsistent references to the lower court case number - 'Kehancha PMC ELC No. 15 of 2015' and 'Kehancha PMC ELC No. 15 of 2019'

minor

The court records the applicant as being at 'the Nakuru Maximum prison' whereas elsewhere the judgment and affidavits refer to Naivasha Maximum Prison

minor

The applicant's affidavit dates for applying for and receiving proceedings (6th March 2023 and 29th March 2023) predate the judgment date of 30th November 2023; the court treated this as a typing error

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, "Tingo v Machera (Environment and Land Miscellaneous Case E026 of 2025) [2026] KEELC 1530 (KLR)", Case Analysis (2026). Kehancha PMC ELC No. 15 of 2015 (appeal therefrom; Notice of Motion dated 19th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1530/eng@2026-02-26

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