Wandwi Rioba & 4 others v Menganyi Nyamugiri Saimo

application is expressed to be brought under Articles 40, 47, 50 and Page 2 of 8

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159(2)(d) of the Constitution of Kenya, Rules 4 and 5(2)(b) of the Court of Appeal Rules, and all other enabling provisions of the law. [2] By the motion, the applicants principally seek leave 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 (Nyagaka, J.) delivered on 8th December, 2025, in Migori ELCA No. E033 of 2024. They also seek such further orders as the Court may deem just and expedient to grant and pray that costs of the application abide the outcome of the intended appeal. [3] The motion is supported by the affidavit of the 1 st applicant sworn on 24th March, 2026, on his own behalf and on behalf of his co- applicants. In the affidavit, the deponent deposes that following the judgment of the trial court in Kehancha CMC ELC No. E003 of 2023, the applicants instructed their then advocates to lodge an appeal to the Environment and Land Court at Migori. According to the applicants, their advocates then, advised them that their physical attendance would not be necessary during the prosecution of the appeal and that they would be updated on the progress of the appeal from time to time. They state further, that although periodic updates were initially provided, the advocates neither informed them of the date scheduled Page 3 of 8

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for delivery of judgment nor communicated the outcome of the appeal after judgment was delivered on 8th December 2025. [4] They further allege that they only became aware that the judgment had infact been delivered when they visited their then advocates’ offices on 24th March, 2026, to inquire about the status of the appeal. They also learnt that the respondent had filed an application dated 23rd March, 2026, seeking execution of the decree issued by the trial court. According to the applicants, their former advocate explained communicate the that he judgment. had The inadvertently applicants were failed to thereafter informed that the period prescribed for lodging an appeal under the court of appeal rules had already lapsed. The applicants maintain that the delay was neither deliberate nor intentional, that they moved the Court promptly upon learning of the judgment, and that the intended appeal raises serious and arguable issues touching on their property rights and occupation of the suit property. [5] The record further shows that a hearing notice was issued by the Deputy Registrar of this Court on 28 th September, 2026, directing that the application will be disposed of by way of written submissions and without appearance of counsel or parties. The notice also directed the Page 4 of 8

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applicants and to file and serve the application, written submissions Page 5 of 8

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any other relevant documents within twenty-four hours, and further directed the respondent to file and serve his written submissions within three days of service. The notice was copied to the email addresses appearing for both sides, demonstrating that all parties on record had been served with the hearing notices and directions. [6] However, when the application came before me for disposal, no response of whatever kind had been filed by the respondent. Similarly, notwithstanding the clear directions issued by the Court regarding the filing of written submissions, neither side had filed them. Be that as it may, the absence of a response and submissions does not relieve the Court of its obligation to consider the application on its merits on the basis of the material properly placed before it. [7] I have considered the Motion, the affidavit in support thereof, and all the materials placed before the Court. The application is one for extension of time to lodge and serve a Notice as well as Memorandum of Appeal out of time against the judgment and decree of the Environment and Land Court at Migori delivered on 8 th December, 2025. The Court's jurisdiction to grant the relief sought is derived from Rule 4 of the Court of Appeal Rules, under which the Court is clothed with wide and unfettered discretion to extend Page 6 of 8

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time on such terms as it considers just. Page 7 of 8

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[8] The principles governing the exercise of the Court’s discretion under Rule 4 are firmly settled and have their most authoritative expression in the celebrated case of the Court in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231. In the case, the court stated inter alia: "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 in general the matters which this court takes into account in deciding whether to grant an extension of time are first 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." [9] Thus the Court underscored that, in exercising that discretion, the relevant considerations include the length of the delay, the reason for the delay, the prospects of the intended appeal succeeding, and the degree of prejudice, if any, likely to be occasioned to the respondent if the application is allowed. These principles have since become the enduring yardstick by which applications for extension of time are determined and continue to guide the exercise of the Court’s discretion in applications of these nature. Page 8 of 8

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[10] In the instant application, the applicants attribute the delay to the failure by their previous advocates to inform them that judgment had Page 9 of 8

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been delivered on 8th December, 2025. According to the applicants, they only became aware of the judgment on 24th March 2026 when they visited their then advocate's offices to inquire about the status of the appeal. Upon receipt of the status report, they immediately took steps to pursue the present application upon discovering that the period for lodging an appeal had already lapsed. [11] Mistake or inadvertence of counsel does not automatically entitle a litigant to relief. However, where a satisfactory explanation is offered and the circumstances demonstrate that a litigant should not be unduly punished for counsel's omission, the Court is entitled to exercise its discretion in favour of such a litigant. From the material placed before me, I am satisfied that the explanation tendered is plausible and has, in any event, not been controverted. [12] I have also considered the period of delay. The judgment sought to be impugned was delivered on 8th December, 2025, whereas the present application was filed on 24 th March, 2026, a delay of about three or so months. In the circumstances of this case, and bearing in mind the explanation advanced by the applicants, 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. Page 10 of 8

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[13] On the arguability of the intended appeal, it is not necessary at this stage to determine the merits of the proposed appeal. It is sufficient if the applicants demonstrate that the intended appeal is not frivolous. The draft Memorandum of Appeal annexed to the application raises complaints against the judgment of the first appellate court touching on breach of their property rights and occupation of the suit property, which, prima facie, deserve interrogation by this court. I am therefore satisfied that the intended appeal is not frivolous. [14] As regards prejudice, despite being served with the hearing notice and directions of the Court, the respondent neither filed a replying affidavit nor any other papers in opposition to the application. Equally, neither party filed written submissions notwithstanding the express directions issued by the Court. In the absence of any response, no specific prejudice has been demonstrated that would be suffered by the respondent if the application is allowed. [15] Be that as it may, the Court is required to determine the application on its merits, and having considered all the circumstances of the case, I am satisfied that the applicants have laid a proper basis for the exercise of this Court's discretion in their Page 11 of 8

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favour. Accordingly: (i) The Notice of Motion dated 24th March 2026 is hereby allowed. Page 12 of 8

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(ii) The applicants are granted leave 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. (iii) Those documents shall be lodged and served within the next within twenty-one (21) days from the date of this ruling. (iv) In default of compliance with the timelines herein, the leave hereby granted shall automatically lapse without further order of the Court. (v) Costs of the application shall outcome of the intended appeal. abide the Dated and delivered at Kisumu this 5th day of October, 2026. ASIKE-MAKHANDIA ………………... ………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 13 of 8

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