https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3413

Abdalla v Omar & 8 others (Environment and Land Appeal E051 of 2025) [2026] KEELC 3413 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 3413 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Appeal E051 of 2025 EK Makori, J May 13, 2026 Between Abdalla Mohamed Abdalla Applicant and Hadija Mohamed Omar 1st Respondent Abdulrahman Athman Mohamed Omar 2nd Respondent Abubakar Athman Mohamed Omar 3rd Respondent Ali Athman Mohamed Omar 4th Respondent Fatuma Athman Mонамеd Omar 5th Respondent Esha Athman Mohamed Omar 6th Respondent Zeinab Athman Mohamed Omar 7th Respondent Maryam Athman Mohamed Omar 8th Respondent Shariffa Athman Mонамed Omar 9th Respondent (Being an Appeal from the Judgment and Decree of the Principal Magistrate at Laти; Honorable M. Maina Wachira delivered on 30th August, 2024, in respect of MC.E.L.C NO. E004 of 2022) Ruling 1.This is an application for leave to appeal out of time from the judgment and decree of the Principal Magistrate at Lamu, delivered by the Honorable M. Maina Wachira on 30th August, 2024, in respect of MCELC No. E004 of 2022. 2.It is opposed. It was canvassed through written submissions. 3.I acknowledge receipt of submissions from learned counsel for the applicant, Ms. Suheila, and learned counsel for the respondents, Mr. Soita, as they went a long way to assist the Court in reaching its verdict. 4.Based on the materials and submissions placed before me, the issues for the Court's determination are whether the applicant has satisfied the grounds set by law to warrant extension of time within which to appeal, and who should pay the costs of the application. 5.The applicant avers that after the judgment was delivered in the Lower Court, he could not, in fact, reach his advocate, even after paying him and instructing him to appeal the matter, as shown in the annexures in the supplementary affidavit. 6.On the other hand, the respondent avers that on August 30, 2024, the trial court delivered its judgment in favor of the 1st respondent based on the facts and evidence presented to the trial court and consistent with the applicable legal principles as they relate to the issues before the court. 7.That the learned trial Magistrate issued a permanent Order of injunction restraining the appellant and the 2nd through the 9th respondent from interfering with the portion of land to be excised from Lamu Island Block III/16, known as Lamu Island Block III/383. 8.Since the judgment was rendered, no actions have been undertaken by the applicant to contest it within the prescribed 30-day appeal period. Such inaction has enabled the 1st respondent to proceed with the enforcement of the judgment by obtaining and processing the issuance of a title deed for the specified parcel, in accordance with the judgment and decree of the trial Magistrate. The applicant now aims to hinder the enforcement process, which is in an advanced stage, and to lodge an appeal beyond the permissible timeframe, citing the excuse that his former legal representative was inaccessible. 9.Section 79G of the Civil Procedure Act provides that:“Every appeal shall be filed within thirty days... provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time." 10.In Nicholas Kiptoo Korir arap Salat v IEBС and 7 Others [2014] eKLR, the principles applicable to an application for leave to appeal out of time were outlined, inter alia, as follows:“The underlying principles a court should consider in exercise of such discretion should include: -a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay.” 11.In this matter, the judgment in the Lower Court was delivered on 30th August, 2024. The applicant had 30 days to appeal, which expired on 30th September, 2024. However, the applicant filed the current application for leave to file the appeal out of time on 3rd September, 2025. This is at least 11 months outside the time limit for filing an appeal. The applicant has attributed the delay in filing his appeal to his then-advocate's unresponsiveness. 12.Concerning the claim that the applicant's previous advocate was unresponsive, the applicant provided screenshots of text messages sent on February 13, 2025. This date is clearly beyond the relevant time limits and does not constitute a valid reason for the delays. Additionally, it is insufficient for the applicant to merely state that he paid his appeal fees and then remained inactive until September 3, 2025, when he finally filed the application for leave to appeal out of time. 13.The applicant's inaction for more than 10 months, without appealing, represents inordinate delay. As I have already found, there is no sufficient cause shown to warrant leave to appeal out of time. Consequently, the application dated 3rd September 2025 lacks merit. It is dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 13TH DAY OF MAY, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Soita for the 1st RespondentKendi: Court AssistantIn the absence of:Ms. Suheila for the Applicant