Mbiti v Muriuki alias Njukii Muriuki & 2 others

iv. Pending the hearing and determination of the intended Appeal, there be a stay of execution of the Judgement and Decree delivered in Embu ELC Case No. E008 of 2024 on 12th November 2025 by the honourable Justice K. Bor. v. The costs of and/or incidental to this Application do abide the outcome of the Appeal. 2. As a single Judge I wish to clarify that this Court is only dealing with the prayer for extension of time to le the Memorandum of Appeal. The application is premised on the grounds on its face and averments in the applicant’s supporting adavit sworn on 27th May 2026. He deponed that upon being sued by the respondents before the Environment and Land Court (ELC) at Embu, he instructed his then advocates to defend the suit on his behalf. However, a misunderstanding subsequently arose between him and his former advocates regarding his instructions and the manner in which the matter was to proceed, resulting in a prolonged breakdown in communication between them. 3. He deponed that he recently found strangers on his farm in Mbeere who informed him that they intended to lay beacons and partition a portion of the said farm pursuant to a judgment delivered by the trial Court. He subsequently learnt that the Judgment had been delivered in November 2025 and that he had lost the suit. Upon making inquiries from his former advocates, he learnt that pursuant to the said Judgment, the advocates had lodged a Notice of Appeal on 23rd November 2025, thereby signifying his intention to Appeal against the said Judgment. He deponed that he was desirous of prosecuting the intended appeal and believed that the Judgment of the trial Court was manifestly unfair, irrational and contrary to the applicable land laws. 4. He averred that the respondents would suer no irreparable loss or prejudice if the application was allowed. He added that the application had been led expeditiously and without undue delay and that it was in the interests of justice that the orders sought be granted. 5. The respondents led a replying adavit sworn by the 1st respondent on 19th June 2026 opposing the application. He averred that they are members of the Mbuya Clan, Mungau House which allocated land parcels number Nthawa/Gitiburi/1715 and Nthawa/Gitiburi/1860 to them and the same were registered in their favour on 19th October 1994. He further averred that Nthawa/Gitiburi/1715 (5.6 Ha) is held jointly by, Njeru Ndathi (the applicant’s son), Japeth Mathagu Kareko and Ngari Njue and Nthawa/Gitiburi/1860 (2.0 Ha) were allocated to the 2nd and 3rd respondents. 6. The 1st respondent averred that in or around 2014, he discovered that the applicant's name had been unlawfully inserted into the proprietorship section of the register for Nthawa/Gitiburi/1715, with a consideration of Kshs. 700,000/= indicated. Further, that a similar unauthorized entry reecting Kshs. 350,000/= had been made in respect of Nthawa/Gitiburi/1860. He averred that they had neither sold nor transferred these parcels to the applicant hence the suit at the ELC seeking to ccancel the said entries. He added that judgment was entered in their favour on 12th November 2025. Thereafter, the applicant’s advocates served them with a Notice of Appeal dated 25th November 2025, demonstrating they were fully aware of the Judgment. 7. The 1st respondent further averred that more than six months have elapsed since judgment without reasonable explanation for the delay in appealing. Furthermore, that the applicant has failed to demonstrate an arguable appeal with any chance of success. Moreover, that the grounds raised in the draft Memorandum of Appeal are unrelated to their claim in the ELC. He deponed that the application is accordingly an abuse of the court process and it ought to be dismissed with costs. 8. When the matter came up for hearing both counsel agreed to rely on their written submissions. The applicant’s submissions are dated 30th July 2026 and were led by the rm of Kariuki Gakunda & https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1794/eng@2026-09-25 2

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Company Advocates. On the question of delay, learned counsel submitted that the six- month lapse was neither inordinate nor born of indolence, but purely a product of miscommunication between the applicant and his previous advocates and his remoteness from information channels. He argued that the applicant acted immediately once he learned of the Judgment. He cited the case of Othieno Vs. Ogembo & 3 Others [2026] KEELC 4246 (KLR), where a six-month delay was held not to be inordinate. He also cited the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR where this Court held that the law xes no minimum or maximum delay period, only that any delay has to be satisfactorily explained. Additionally, that in Mwangi Vs. Kenya Airways Ltd (2003) KLR 486 and Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1977) this Court established the requirements to be met for extension of time to include: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent. 9. On arguability, learned counsel asserted that the draft Memorandum of Appeal raises four weighty grounds with a high chance of success, among them being that the trial court disregarded law and evidence in reaching its decision. He placed reliance on the case of Optiven Limited Vs. Langata Community & 14 Others [2026] KECA 1031 (KLR) where this Court held that Rule 4 of the Court of Appeal Rules, 2022 confers it with unfettered but judicious discretion to extend time. Additionally, in James Wangalwa & Another Vs. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) this Court emphasized that the right of appeal is a constitutional right that actualizes the right to access to justice, protection and benet of the law. That anything that renders the appeal nugatory impinges on the said right. 10. In conclusion, learned counsel urged the Court to grant the applicant who is elderly and whose entire sustenance depends on the suit land a nal opportunity to be heard on the merits of his claim to ownership. 11. The respondents’ submissions are dated 27th July 2026 and were led by the rm of Rose W. Njeru & Company Advocates. Learned counsel contended that the application is wholly devoid of merit and must be dismissed with costs. She argued that the applicant failed on every limb of the settled legal tests governing extension of time. 12. On extension of time, learned counsel cited the Supreme Court's holding in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR and submitted that extension of time is not a right but an equitable remedy available only to a deserving party at the court's discretion, with the burden resting squarely on the applicant to lay a satisfactory basis for the delay. That this burden had not been met. She further submitted that both the applicant and his advocates were aware of the Judgment and so, it is contradictory for the applicant to now claim he only learned of the same months later when strangers allegedly visited his farm. 13. She pointed out that no adavit had been sworn by the applicant’s previous advocates explaining why the record of appeal was never led. She stated that unsubstantiated allegations of a misunderstanding between advocate and client, without independent evidence, was insucient. She cited the case of Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, where this Court held that a litigant cannot simply blame counsel without demonstrating the circumstances leading to the delay and asserted that the delay here is substantial and wholly unexplained. On whether the intended appeal is arguable, she relied on the principle test from Stanley Kangethe Kinyanjui v Tony Keter & 5 Others (Civil Application No. 31 of 2012), requiring proof that the appeal is arguable and that it would be rendered nugatory in the absence of a stay. 14. She added that the applicant’s reliance on Embu HCCC No. 79 of 2005 is misconceived, as the trial court correctly found that the respondents were neither parties to nor represented in that suit. Further https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1794/eng@2026-09-25 3

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that the alleged consent was between the applicant and clan ocials, while the respondents had already been registered as proprietors since 1994 before the 2005 suit. Counsel concluded by submitting that the applicant had failed to satisfy the principles under Rule 4 and the twin principles under Rule 5(2) (b), and pray that the Notice of Motion dated 27th May 2026 be dismissed with costs. 15. I have considered the application, the adavits and annexures thereto. I have also examined the parties’ written submissions and analyzed the law. The applicant prays for extension of time to lodge his Notice of Appeal out of time. 16. Regarding the prayer for extension of time, Rule 4 of this Court’s Rules provides that the Court may, on such terms as may be just, by order, extend the time limited by the Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by the Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 17. The principles guiding this Court on whether to grant or deny an application for extension of time were well articulated by this Court in the case of Fahir Mohammed Vs. Joseph Mugambi & 2 Others Civil Application NAI 332/04 (UR) as follows: “ The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the structure of “sucient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the eect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors: see Mutiso v Mwangi, Civil Application No. Nai. 255 of 1997(UR), Mwangi v Kenya Airways Ltd [2003] KLR 486”. 18. The applicant argued that the Notice of Appeal was not led in good time because there was a misunderstanding between him and his former advocates regarding his instructions and the manner in which ELC Case No. E008 of 2024 was to proceed. He further argued that upon learning of the judgment he instructed his advocates who led a Notice of Appeal dated 23rd November 2025. This was a clear indication of his intention to appeal against the impugned judgment. The issue of execution came later. 19. It is common ground that the impugned judgment was delivered on 12th November 2025. It is also not disputed that a Notice of Appeal was lodged on 23rd November 2025, albeit outside the prescribed period. The present application was led on 27th May 2026. The period between the delivery of judgment and the ling of the present application is therefore approximately six months. 20. The respondents contend that the delay is inordinate and unexplained, particularly because the applicant’s former advocates were aware of the Judgment and proceeded to lodge a Notice of Appeal. They fault the applicant for failing to procure an adavit from his former advocates explaining why the Notice of Appeal was not lodged within the prescribed period or why the Record of Appeal was not thereafter led. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1794/eng@2026-09-25 4

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21. There is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo Vs. Paul Kipkorir Kibet [2018] eKLR, this Court held as follows: “ 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.” 22. I have considered the respondent’s position on this issue of delay. While it is true that a litigant who seeks the exercise of the Court’s discretion must place before it a satisfactory explanation for the delay, the Court is not required to approach the matter mechanically or to punish a litigant for every default attributable to his advocate. The overriding consideration is whether, in all the circumstances of the case, the applicant has demonstrated sucient grounds upon which the Court may exercise its discretion in his favour. 23. In the present case, the applicant has explained that there was a breakdown in communication between himself and his former advocates concerning the conduct of the proceedings. That explanation is not entirely unsupported by the record. In particular, the ling of the Notice of Appeal on 23rd November 2025, shortly after delivery of the judgment, and within the timelines is signicant. It demonstrates that the applicant, through his advocates, manifested an intention to challenge the judgment at the earliest opportunity. The subsequent failure to take the necessary procedural steps cannot, in the circumstances of this case, be viewed in isolation from that conduct. 24. I am also mindful that the applicant is a lay litigant and that the dispute concerns proprietary rights over land which, according to his adavit, he has occupied and utilized for a considerable period. The explanation given may not be perfect, but the exercise of discretion under Rule 4 is not dependent upon the applicant furnishing a awless explanation. The Court is required to consider the totality of the circumstances and to do so in a manner that advances the interests of justice. 25. As was stated in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra), extension of time is an equitable remedy available at the discretion of the Court. That discretion, however, must be exercised judicially and not whimsically. The Court must consider, inter alia, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, the degree of prejudice likely to be suered by the respondent and the eect of the delay on the administration of justice. 26. On the length of the delay, I do not consider a period of approximately six months, in the peculiar circumstances of this case, to be so inordinate as, by itself, to disentitle the applicant from the exercise of the Court’s discretion. The period is undoubtedly substantial, but length of delay is only one of the factors to be considered. More importantly, the applicant has demonstrated that an intention to appeal was manifested by the ling of a Notice of Appeal shortly after judgment. The delay thereafter appears to have arisen from the breakdown in communication with his advocates rather than from a deliberate decision to abandon his intended appeal. 27. I also bear in mind that the applicant moved the Court after he became aware of the steps being taken pursuant to the judgment. His conduct does not, in my view, disclose an intention to sit on his rights indenitely. The Court should, where circumstances permit, lean towards allowing a litigant an opportunity to ventilate a bona de grievance on appeal, particularly where the subject matter involves proprietary interests which may be dicult to restore once altered on the ground. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1794/eng@2026-09-25 5

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28. The respondents have argued that the applicant has not demonstrated that his intended appeal is arguable. I have perused the draft Memorandum of Appeal annexed to the application. At this stage, the Court is not required to conduct a mini-hearing of the intended appeal or determine whether the proposed grounds will ultimately succeed. It is sucient that the applicant demonstrates that the intended appeal raises at least one bona de issue deserving consideration by the appellate Court. 29. In my view, the proposed grounds, particularly those challenging the ELC’s evaluation of the evidence and its application of the applicable law to the parties’ competing claims to the suit properties, cannot be said to be frivolous. Whether those complaints will ultimately succeed is a matter for the bench seized of the intended appeal. I am therefore satised that the intended appeal is not merely speculative or frivolous. 30. I have further considered the question of prejudice. The respondents contend that execution has already taken place and that the suit properties have been reinstated in their names. That fact does not, in my view, determine the prayer for extension of time. 31. I appreciate that litigation must come to an end and that procedural timelines serve an important purpose in ensuring certainty and nality. Nevertheless, procedural rules are intended to facilitate the just determination of disputes and not to occasion an injustice where the circumstances warrant the exercise of judicial discretion. The respondents will retain the opportunity to contest the intended appeal on its merits. I am not persuaded that allowing the applicant to lodge his appeal out of time will occasion prejudice that cannot adequately be addressed by appropriate orders of the Court. 32. Further, I am guided by the overarching objective that disputes should, as far as possible be determined on their merits. This Court in Mwaura v Mukonza (Civil Appeal (Application) E704 of 2024) [2026] KECA 475 (KLR) held as follows; “ 11. In his adavit in support of the application, the applicant concedes that there were missteps in the handling of this matter by his counsel on record at the material time. The Court also notes that the pleadings are not all together elegant in nature. 12. However, and despite the foregoing, I am minded to render substantive justice and allow the parties to fully ventilate their respective cases before this Court.” (Emphasis mine) 33. In the circumstances, and having considered the explanation for the delay, the period involved in the context of the particular circumstances, the fact that a Notice of Appeal was lodged shortly after judgment, the arguability of the intended appeal and the nature of the subject matter, I am satised that this is an appropriate case in which to exercise the discretion under Rule 4 in favour of the applicant. 34. Accordingly, I allow the prayer for extension of time. The applicant shall lodge and serve the Memorandum of Appeal within fourteen (14) days from today’s date. Costs to the respondents. 35. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026 H.I. ONG’UDI ....................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1794/eng@2026-09-25 6

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I certify that this is the true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1794/eng@2026-09-25 7

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