Lukwa (Suing as the Legal Representative of the Estate of the Late Julius Muhambi Amayi (Deceased) v Imbuusi (Civil Appeal (Application) E155 of 2025) [2026] KECA 92 (KLR) (29 January 2026) (Ruling)
Neutral citation:
[2026] KECA 92 (KLR)
Republic of Kenya
Civil Appeal (Application) E155 of 2025
LK Kimaru, JA
January 29, 2026
Between
Agnes Nyaloya Lukwa (Suing as the Legal Representative of the Estate of the Late Julius Muhambi Amayi (Deceased)
Applicant
and
Antony Panga Imbuusi
Respondent
(Being an application for extension of time to file and serve the record of appeal out of time from the Judgment and Decree of the Environment and Land Court of Kenya at Kakamega (D.O. Ohungo, J. dated 15th November, 2023 in ELC No. 10 of 2020 (O.S.
Environment & Land Case 10 of 2020
)
Ruling
1.The applicant moved this Court by notice of motion substantially under Rule 4 of the Court of Appeal Rules seeking to be granted extension of time for the record of appeal which was filed in Court on 15th July, 2025 to be deemed to have been filed within time. The applicant explains that she was aggrieved by the Judgment delivered on 15th November, 2023 by the Environment and Land Court in Kakamega ELC Case No. 10 of 2020 (OS). She lodged the notice of Appeal on 21st November, 2023. It was within time. The applicant wrote the letter to the trial court requesting for typed and certified copies of proceedings and Judgment. The same was supplied on 15th October, 2024. The applicant states that she was required to file the record of appeal within sixty (60) days of receipt of the proceedings as provided under Rule 84(1) of the Court of Appeal Rules.
2.She did not do so due to the fact that she was, at the time, prosecuting an application before the trial court that sought to stay the execution of Judgment and decree. The application was finally disposed of and a Ruling delivered on 21st May, 2025. It was after delivery of the Ruling that the applicant filed the record of appeal out of time on 15th July, 2025. The applicant pleads with the Court to allow the application in the interest of justice. She states that her intended appeal raises triable issues which will likely succeed. The applicant insist that the delay was not inordinate. She deserves a chance to ventilate her appeal before this Court.
3.The application is opposed. Emily Kadenyi, the respondent’s advocate swore a replying affidavit in opposition to the application. She deponed that the applicant failed to copy the letter to the Court bespeaking of proceedings to the respondent and therefore cannot benefit from the proviso of Rule 84(1) of the Court of Appeal Rules. The respondent was not convinced that the delay was excusable. She pointed out that the period of delay was 409 days from the date the notice of appeal was filed. The applicant had not satisfactorily explained the reason for such delay. She deponed that the delay in lodging the record of appeal was inordinate that the applicant was not entitled to the exercise of discretion by this Court. She accused the applicant of being indolent and not respecting the strict timelines laid by the Rules. She urged the Court to dismiss the application with costs.
4.This Court has carefully considered the facts of this case and the submission of the parties. Rule 4 of the Court of Appeal Rules grants this Court unfettered discretion to determine whether or not to grant the application for extension of time. This Court, however, is guided by established principles in determining such applications. The principles include the reason for the delay, the length of delay, the chances of appeal succeeding and lastly, the degree of prejudice that the respondent will suffer. (See Sila Mutiso v. Hellen Wangari Mwangi [1999] 2EA 231).
5.In the present application, the applicant lodged the notice of appeal in time. The applicants wrote the letter bespeaking of certified copies of proceedings to Court within time. However, she did not copy this letter to the respondent’s advocate under the proviso of Rule 84(1) of the Court of Appeal Rules. When the certified copies of the proceedings were finally supplied, she was out of time hence this application. The applicant gave the reason for delay in filing the record of appeal in time to be on account of an interlocutory application that she was at the time pursuing before the trial court to stay the execution of the Judgment and decree that is the subject of this appeal. In the fog of battle, she did not file the record of appeal in time.
6.Although the respondent was not convinced by this explanation, this Court finds the explanation for the delay excusable. It was clear from the application that the applicant got distracted when she pursued the order of stay of execution before the trial court. The period of delay, while lengthy, is not inordinate in the circumstances of this case. This Court formed the view that it will serve the interest of justice to allow the applicant to proceed with her appeal before this Court.
7.In the premises therefore, the application has merit and is hereby allowed. The applicant is granted leave to file and serve the record of appeal out of time. The applicant shall file and serve the record of appeal within twenty one (21) days of today’s date. The respondent shall have the costs of the application.
DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF JANUARY,2026.L. KIMARU........................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.