Gatua v Njiru (Civil Application E181 of 2025) [2026] KECA 18 (KLR) (23 January 2026) (Ruling)

Gatua v Njiru (Civil Application E181 of 2025) [2026] KECA 18 (KLR) (23 January 2026) (Ruling) Neutral citation: [2026] KECA 18 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E181 of 2025 A Ali-Aroni, JA January 23, 2026 Between Pasqualina Muthoni Gatua Applicant and John Bosco Njiru Respondent (Being an application for leave to file an appeal out of time from the Judgment of the High Court at Embu (L. Njuguna, J.), delivered on 19th December 2024 in HCFA No. E005 of 2024) Ruling 1.Before the Court is an application by way of a notice of motion dated 5th December 2025, brought under rules 44 and 49 of the Court of Appeal Rules 2022 (‘the Rules’), seeking leave to file the appeal out of time and for the memorandum and the record of appeal, which are said to have been filed, to be deemed as duly filed. 2.The application is predicated on the grounds on the face of the application, rehashed in the supporting affidavit sworn by the applicant on 5th December 2025, and where she states that a notice of appeal was duly filed on 23rd December 2024. She was unable to file her memorandum of appeal within 30 days of the judgment that was delivered on 19th December 2024, as her counsel experienced difficulties uploading the same on the Court Tracking System (CTS), as he was required to accompany it with the record of appeal, which was not ready because the proceedings, judgment and other necessary documents had not been supplied. 3.The applicant further avers that she has a strong case and has shown diligence in pursuing her claim against the respondent, and allowing this application will not cause any prejudice to the respondent. Further, it is only fair to grant the applicant leave to file the appeal out of time. The delay in submitting the memorandum of appeal was not intentional. 4.The respondent’s counsel, Njagi Lucy Muthanje, has filed a replying affidavit sworn on 16th January 2026, where she states that the applicant failed to file the record of appeal by the 21st March 2025 deadline. Additionally, the applicant failed to serve the letter requesting typed proceedings, which is a requirement for extending the computation of time under the Rules. Further counsel deposes that the applicant has provided no "sufficient and plausible" reasons for the delay. It is also contended that leave to appeal out of time is reserved for "vigilant litigants," not those who ignore court rules. 5.Further, it is averred that under section 50 of the [Law of Succession Act](/akn/ke/act/1972/14), the High Court’s determination on an appeal from the Magistrate's Court is final. The respondent has already executed the High Court judgment and is now the registered owner of the disputed land. The intended appeal is "frivolous" and not arguable, noting that the parties have been in litigation for over 10 years and deserve finality, and therefore, the application ought to be dismissed. 6.I have considered the application, the supporting affidavit, the replying affidavit and the submissions filed by the parties. The issue for determination is whether the applicant should be granted an extension of time to file the memorandum of appeal and the record of appeal out of time, and whether the memorandum of appeal and the record of appeal already filed may be deemed to have been filed within the required time. 7.Before determining the issue at hand, I find it necessary to consider some points submitted by both counsel on record. First, the applicant’s counsel states that he failed to file the memorandum of appeal within 30 days of the notice of appeal and further blames the CTS for rejecting it because it was not filed within the record of appeal. 8.The respondent’s counsel, on her part, submits that the notice of appeal was served out of time. Secondly, the letter bespeaking the proceedings was not copied to her; therefore, time cannot be extended; and, thirdly, section 50 of the [Law of Succession Act](/akn/ke/act/1972/14) prohibits appeals beyond the High Court in succession matters originating in the Magistrates' Court. 9.Rule 79 of the Rules requires the notice of appeal to be served within 7 (seven)days. The complaint that the notice was not served on time may be genuine, but again rule 86 of the Rules provides for the step to be taken in such an instance, and the complaint, for now, is in the wrong forum. 10.Rule 84 states as follows:1.Subject to rule 118, an appeal shall be institutedBy lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged—Institution of appeals.a.a memorandum of appeal, in four copies;b.the record of appeal, in four copies;c.the prescribed fee; andd.security for the costs of the appeal:Provided that where an application for a copy of the Proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.2.An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent.3.The period specified in sub-rule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction. 11.Under rule 4 of the Rules, the Court has a wide discretion to extend the time limited to do any Act authorised by the Rules or ordered by the Court, where a sufficient explanation for the delay has been given. The rule states that:The Court may, on such terms as may be just, by order, 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, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 12.Rule 84 gives an applicant 60 days from the time the notice of appeal is lodged to file the record of appeal. And where the letter bespeaking the proceedings is written within thirty days after the date of the decision being appealed against and is served upon the rival party, time automatically starts to run from the date on the Certificate of Delay. Therefore, counsel for the applicant had up to the 21st of March 2025, as rightly stated by the respondent’s counsel, to file the record of appeal. The thirty days referred to by the applicant’s counsel is a misunderstanding of the Rules. 13.The other misapprehension of the Rules is the averment by counsel for the respondent that time cannot be extended since the letter bespeaking proceedings was not served. The rule is clear: where the letter has been served, the 60 days start running from the date the Certificate of Delay is issued. Where the proviso is overlooked, it is within the right of a party to move this Court under rule 4 of the Court’s Rules and give sufficient reasons for the delay. The application is therefore properly before the court. 14.The Supreme Court in Salat vs. Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling); held:“16.Discretion to extend time was indeed unfettered.It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.17.The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:a.Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;b.A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;c.Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case-by- case basis;d.Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;e.Whether there would be any prejudice suffered by the respondents if the extension was granted;f.Whether the application had been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time”. (Emphasis added). 15.This Court stated in Abdul Azizi Ngoma vs. Mungai Mathayo [1976] KLR 61, 62, that:“We would like to state once again that this court’s discretion to extend time under rule 4 only comes into existence after ‘sufficient reason’ for extending time has been established and it is only then that other considerations such as the absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.” 16.The judgment of the High Court was delivered on the 19th of December 2024. Proceedings are said to have been applied for on the 20th of December 2024, though no copy was annexed to the application. The notice of appeal was lodged on 23rd of December 2024. The proceedings and judgment were obtained on 7th February 2021. The 60 days within which to file the memorandum of appeal and the record of appeal, as rightly put by the respondent, would have expired on the 21st of March 2025. 17.The reason advanced for the failure to file the record on time is that the memorandum of appeal was not filed due to a technical hitch, and the necessary documents were not obtained on time. That as it may be, there is information on record that the proceedings and the judgment were obtained by 7th February 2025, before the 60 days’ expiry, yet no explanation whatsoever has been advanced why there was a delay in filing the record of appeal within time (the 60 days) or even why this application was filed on 5th of December 2025. 18.In the end, I find that no plausible or sufficient explanation has been placed before the Court which would have paved way for considerations of other factors as set above. Consequently, the application is dismissed with costs. **DATED AND DELIVERED AT NYERI THIS 23 RD DAY OF JANUARY, 2026.****ALI-ARONI****....................................****JUDGE OF APPEAL** _I certify that this is a true copy of the original.__Signed_ _Deputy Registrar_