Mutungi v Mutungi & 5 others

2. The grounds in support of the application are borne out on the face thereof and in the adavit in support sworn by the applicant on 3rd July 2026. 3. In summary, the applicant avers that immediately following the delivery of the impugned ruling by the Environment and Land Court (ELC) at Naivasha, her erstwhile advocate secured employment with the Ethics and Anti-Corruption Commission (EACC) and consequently ceased acting on her behalf in the matter. The applicant states that this cessation of representation occurred at a critical juncture when the statutory time for lodging a Notice of Appeal was running. She further explains that, owing to nancial constraints, she was unable to promptly retain alternative counsel to proceed with the appellate process. Compounding these challenges, the applicant fell ill during the same period, which signicantly impaired her ability to follow up on the matter and take the necessary steps within the prescribed timelines. As a result of the conuence of these unforeseen and unavoidable circumstances, the applicant was unable to le the Notice of Appeal within time. 4. It is contended by the applicant that the delay in lodging the notice of appeal is only 1 day beyond the statutory period. 5. It is further contended that the intended appeal raises substantial and arguable questions of law. However, a draft memorandum of appeal has not been annexed to the adavit in support of the application. 6. It is further urged that the respondents will not suer any prejudice incapable of compensation by an award of costs by this honorable court. 7. The 1st respondent, on his part, avers that although the applicant's application is dated 3rd July 2026, it was not lodged in the court registry until 4th August 2026. He contends that the applicant has failed to candidly and satisfactorily explain the delay of 33 days between the date appearing on the application and the date of its actual ling. The 1st respondent further submits that the applicant's assertion that the delay amounted to only one day is materially misleading and does not accurately reect the true chronology of events. In his view, the delay is considerably longer than alleged and has not been suciently accounted for, thereby disentitling the applicant to the discretionary relief sought from the Court. 8. In rejoinder, the applicant has explained that although the application was lodged on 4th August 2026, eorts to lodge it commenced on 3rd July 2026. She depones that on 3rd July 2026, she attempted to le the application via the Court's Case Tracking System (CTS). However, the lodging process could not be completed after the court registry informed her that the documents she had uploaded could not be downloaded from the system. Consequently, she transmitted the documents to the registry via email and thereafter engaged with the registry in addressing a number of issues that were raised and required rectication before the documents could be accepted for ling. The applicant contends that, owing to these diculties, coupled with the challenges attendant to self-representation, the ling process was delayed and was only completed on 4th August 2026 when the documents were eventually uploaded and accepted by the registry. She therefore maintains that the delay was not deliberate or inordinate. 9. I have considered the application, grounds in support thereof, the submissions, as well as the law. Rule 4 of the Court of Appeal Rules does not provide for factors that the court ought to consider in an application for extension of time, but courts have devised appropriate principles to be applied https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2004/eng@2026-09-30 2

page 2 of 5

in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999], which is the locus classicus, laid down the parameters as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: rst the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”[Emphasis supplied.] 10. 11. The Supreme Court has, in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others, SC Application No. 16 of 2014; [2014] eKLR, further distilled the principles which courts ought to consider when determining applications for extension of time. These principles are: “ i) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court. ii. A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court. iii. Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis. iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court. v. Whether there will be any prejudice suered by the respondents if the extension is granted. vi. Whether the application has been brought without undue delay; and vii. Whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” These principles guide my determination herein. As regards the length of delay, in Sentrim Kenya Limited vs. CFC Stanbic Bank Limited [2021] KECA 648 (KLR) this Court stated that 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 stated: “ 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 favorably exercisable.” 12. In the instant case and as regards the length of the delay, the impugned ruling was delivered on 18th June 2026. The instant application is dated 3rd July 2026 but was lodged in the registry on 4th August 2026. The delay is approximately 47 days. 13. As stated in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet (supra), a plausible and satisfactory explanation is what unlocks the court’s discretion. In the present case, the applicant avers that shortly after the delivery of the impugned ruling, her erstwhile advocate ceased acting for her upon securing https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2004/eng@2026-09-30 3

page 3 of 5

employment with the Ethics and Anti-Corruption Commission (EACC). At around the same time, the applicant fell ill and was consequently unable to take the necessary steps to commence the appellate process within the prescribed timelines. To substantiate this assertion, she has annexed medical records demonstrating that she was indeed indisposed during the material period. 14. The applicant further explains that, upon deciding to pursue the matter in person, she encountered diculties in lodging her application through the Court's Case Tracking System (CTS). She avers that she attempted to le the application on 3rd July 2026, but the process could not be completed after the registry informed her that the documents uploaded onto the system could not be downloaded. Consequently, she transmitted the documents via email and thereafter engaged with the registry in addressing a number of issues that were raised and required rectication before the documents could be accepted for ling. Owing to these challenges, the application was not successfully lodged until 4th August 2026, when the requisite corrections had been made, and the ling process was completed. 15. In my view, illness is a circumstance beyond the control of a litigant and, when suciently demonstrated, constitutes a legitimate impediment to the timely pursuit of legal remedies. Indeed, the 1st respondent does not dispute this proposition and has expressly acknowledged that illness may, in appropriate circumstances, constitute a legitimate excuse for delay. In the present case, the applicant has exhibited medical records demonstrating that she was suering from tuberculosis during the material period. Given the nature of that illness, I am satised that her indisposition was capable of substantially impairing her ability to attend to the demands of litigation. When this circumstance is considered alongside the diculties she encountered while acting in person following the cessation of her advocate's services, the explanation advanced for the delay cannot be said to be unreasonable, implausible, or indicative of indolence. I am therefore satised that the delay has been satisfactorily explained and that a sucient basis has been laid for the exercise of this Court's discretion. 16. As to the arguability or otherwise of the intended appeal, it would not be in my place to determine the same sitting as a Single Judge, and I will therefore not delve further into this issue. 17. Finally, on the issue of prejudice, the 1st respondent has not demonstrated any specic prejudice that he is likely to suer should the orders sought be granted. Notably, the other respondents did not oppose the application. In the circumstances, I am not persuaded that the respondents will suer any prejudice if the applicant is allowed to pursue her appeal. 18. The totality of my ndings, therefore, is that the applicant has demonstrated and satised the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time within which to le the intended appeal. 19. Accordingly, the applicant’s motion dated 3rd July 2026 is merited, and the same is hereby allowed. I direct the applicant to le and serve the Notice of Appeal, Memorandum of Appeal and Record of Appeal within thirty ( 30) days from the date hereof, failure to which the orders herein shall be vacated. Costs of the application to abide by the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER, 2026. AHMED ISSACK ………….……..…………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2004/eng@2026-09-30 4

page 4 of 5

DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2004/eng@2026-09-30 5

page 5 of 5