Modugno & 4 others v Coco & 11 others

(Being an application for extension of time to serve the Notice of Appeal against the Ruling and Orders of the High Court of Kenya at Malindi (M. Thande, J.) dated 11th July 2025 in Petition No. E006 of 2024) RULING 1. Before me is the applicants’ Notice of Motion dated 12th January 2026 seeking extension of time to serve upon the respondents the Notice of Appeal dated and lodged on 18th July 2025; and that the said Notice served upon the respondents on 5th November 2025 be deemed as served on time. 2. The Motion is supported by the annexed adavit of Mwangi Ndegwa, counsel for the applicants, sworn on 12th January 2026 essentially deposing to the grounds on which the application is founded, namely: that, following delivery of the impugned Ruling on 11th July 2025, the applicants timeously led a Notice of Appeal dated and lodged on 18th July 2025; that the said Notice was inadvertently not served on the respondents until 5th November 2025; that this mistake was neither deliberate nor careless, but was occasioned by the advocate’s clerk’s failure to serve; that the intended appeal is arguable; that the applicants will suer irreparable prejudice, loss and damage unless the orders sought are granted; and that the respondents would suer no prejudice if the application was allowed. 3. Learned counsel for the applicants, M/s Ndegwa & Ndegwa led written submissions and a case digest both dated 23rd February 2026, which I have duly considered. 4. In opposition, Mr. Kinyua Kamundi, learned counsel for the 1st, 2nd and 3rd respondents, led a replying adavit sworn on 27th January 2026 deponing inter alia that: the applicants served the said Notice of Appeal on 6th November 2025 and not on 5th; that this was over (3) three months out of time, prompting the 1st, 2nd and 3rd respondents to le Civil Application No. E034 of 2025 dated 15th August 2025 seeking orders to strike out the said Notice; and that (5) ve months later, the applicants led the instant application. 5. Notably, none of the other respondents replied to the applicants’ Motion or led any written submissions. 6. When the applicants’ Motion came up for hearing on the Court’s virtual platform on 27th July 2026, Mr Kamunde appeared for the 1st, 2nd and 3rd respondents and highlighted their written submissions. However, there was no appearance by counsel for the applicants, the ODPP for the 4th to 6th respondents, the AG for the 7th to 9th respondents, or the 10th to 12th respondents, despite having been duly served with the hearing notice on 16th July 2026 7. Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to “… extend the time limited by these Rules, or by any decision of the Court or of a superior Court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act …,” on such terms as it thinks just. 8. As was enunciated in Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA p231, the basic factors to be considered in exercise of the Court’s discretion in determination of applications under rule 4 are: (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding if the application is granted; and (iv) the degree of prejudice to the respondent if the application is granted. In principle, the discretion is unfettered, and there is no limit to the number of factors the court would https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1766/eng@2026-09-25 2

page 2 of 3

consider so long as they are relevant (see also Fakir Mohammed v Joseph Mugambi and two others [2005] eKLR). 9. With regard to the question as to whether the appeal is arguable, it is sucient for the applicant to demonstrate that they have an arguable appeal with the likelihood of success. Having considered the numerous grounds of appeal set out on the applicants Memorandum of Appeal dated 18th July 2025, and considering the low threshold, I form the view that the intended appeal is arguable. Notably, the applicants fault the learned Judge for “making adverse ndings against the applicants as well a person who was not a party in the proceedings without conducting a hearing on those allegations”. 10. On the period of delay, this Court in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR observed that “ … the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s ow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favourably exercisable.” 11. I take to mind the fact that the notice of appeal from the ruling and order dated 11th July 2025 was lodged on 18th July 2025 within the period prescribed in rule 77(2) of this Court’s Rules; and that the said Notice was served via email upon the 1st, 2nd and 3rd respondents’ counsel on 6th November 2025, more than three months from the period prescribed in rule 78 of this Court’s Rules. The delay herein is substantial and has not been satisfactorily explained. Merely laying blame on a clerk by casually stating that he inadvertently failed to serve the notice is not by any means persuasive. Moreover, it is the responsibility of counsel to ensure due process in service of their clients. Yet, counsel makes no eort to assume responsibility and proer credible explanation beyond those casual remarks. 12. As regards the issue as to whether the extension of time to serve the Notice of Appeal will cause undue prejudice to the respondents, I take to mind the fact that the applicants’ Motion was led ve (5) months after the 1st to 3rd respondent’s Motion dated 15th August 2025 seeking orders to have the notice of appeal struck out for want of compliance with rule 78 of the Rules of this Court. To my mind, the applicants’ Motion was reactionary and intended to steal a match and subvert the 1st to 3rd respondents’ Motion. I take cognisance of the fact that allowing the applicants’ inexplicably belated Motion, which has no merit, would be tantamount to determining the fate of the 1st, 2nd and 3rd respondents’ application, which is yet to be heard. 13. Having carefully considered the applicants’ Motion, the grounds on which it was founded, the adavit in support, the oral submissions by learned counsel, the cited authorities and the law, I form the view that the application has no merit and is hereby dismissed with costs to the 1st, 2nd and 3rd respondents. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. DR. K. I. LAIBUTA CArb, FCIArb. ........................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1766/eng@2026-09-25 3

page 3 of 3