Matara v Meroka & 2 others (Civil Application E119 of 2025) [2025] KECA 1923 (KLR) (19 November 2025) (Ruling)
Neutral citation:
[2025] KECA 1923 (KLR)
Republic of Kenya
Civil Application E119 of 2025
LK Kimaru, JA
November 19, 2025
Between
Edwin Mbaka Matara
Applicant
and
Mochumbe Osinyo Meroka
1st Respondent
Mary Mochumbe
2nd Respondent
Land Registrar, Nyamira County
3rd Respondent
(Being an application for extension of time to lodge and serve the notice of appeal out of time from the Ruling of the Environment and Land Court of Kenya at Nyamira (D. O. Ohungo, J) dated 3{{^rd}} April, 2025. in ELCLOS NO. E006 of 2024)
Ruling
1.Edwin Mbaka Matara, the applicant herein, moved the Court by notice of motion substantially under Rule 4 of Court of Appeal Rules seeking to be granted extension of time to lodge and serve the notice of appeal out of time against the Ruling of the Environment and Land Court (ELC) delivered on 3rd April, 2025. The applicant gave the reason for the delay to be the challenge he experienced with the Judiciary’s e-filing system when he attempted to file the notice of appeal on 17th April, 2025. He was only able to lodge the Notice of Appeal on 19th April, 2025. By that time, the period on which he was supposed to have lodged the notice of appeal by the Court of Appeal Rules had lapsed.
2.The applicant states that the delay of two (2) days was excusable and had been reasonably explained in the circumstances. The applicant asserts that he should be given a chance to ventilate his appeal before this Court, which in his view, has a high likelihood of success. He contends that the respondent will not suffer any prejudice if the Court grants the prayers sought in the application. The application is supported by the annexed affidavit of the applicant, and further grounds on the face of the motion.
3.The application is opposed. The 2nd respondent, Mary Mochumbe swore a replying affidavit in opposition to the application. The 1st and 2nd respondents were not convinced that there was a technical hitch in the Judiciary’s e-filing platform that prevented the applicant from lodging the notice of appeal in time. They pointed out that if indeed that was the case, they wondered why it took the applicant four (4) months to file the present application for extension of time before this Court. The 1st and 2nd respondents deponed that the intended appeal is meant to perpetrate a pattern of intimidation of the trial Judge that the applicant engaged in with a view of frustrating the just conclusion of the case. The 1st and 2nd respondents maintained that the applicant’s conduct precludes the Court from exercising discretion in his favour by granting the prayers sought in the application. The 1st and 2nd respondents urged the Court to dismiss the application as it lacks merit.
4.This Court has carefully considered the application, the affidavits filed in support and in opposition to the application and the written submission filed by the 1st and 2nd respondents. For the record, the Court did not see any written submissions filed by the applicant. Under Rule 4 of the Court of Appeal Rules, this Court has unfettered discretion to extend time for any steps to be taken that has been limited in time by the Rules. This discretion is exercised judiciously and not by whim or caprice. In Gicheru v. Attorney General [2024] KECA 150 CKLR, Ochieng JA held thus:
5.In the present application, the applicant explained that he was prevented from lodging the appeal in time due to technical hitch he experienced with the Judiciary e-filing system when he sought to file the notice of appeal on 17th April, 2025. He contacted the ELC’s registry to seek assistance but unfortunately the issue was not resolved by the end of the day. He was only able to lodge the notice of appeal on 19th April, 2025. However, by the time, he was already two days late. Although the 1st and 2nd respondents expressed scepticism with the reason given by the applicant for failure to lodge the appeal in time, this Court is persuaded that the applicant is deserving of the exercise of discretion by this Court in his favour. A delay of two (2) days, by any measure, is not inordinate. Although the intended appeal seeks to challenge an interlocutory Ruling of the ELC, (it would have been preferable for the applicant to have the suit substantially heard and determined on its merits), this Court formed the view that he should be given a chance to ventilate his appeal before this Court.
6.In the premises therefore, the application has merit and is allowed. The applicant is granted extension of time to file the notice of appeal out of time. The said notice of appeal shall be filed and served within seven (7) days of today’s date. The record of appeal shall be filed and served within thirty (30) days of today’s date. The 1st and 2nd respondents shall have the costs of the application in any event.
DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF NOVEMBER, 2025.L. KIMARU...........................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.