https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4312

Sirimba v Okutoi & 4 others (Miscellaneous Application E004 of 2026) [2026] KEELC 4312 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4312 (KLR) Republic of Kenya In the Environment and Land Court at Busia Miscellaneous Application E004 of 2026 L Waithaka, J July 2, 2026 Between Antonina Apiyo Sirimba Applicant and Judith Ayieko Okutoi 1st Respondent Francis Ofunya Afande 2nd Respondent Pius Mukhanu Munyendo 3rd Respondent Land Registrar Busia County 4th Respondent The Honourable Attorney General 5th Respondent Ruling 1.By a plaint dated 16th September 2026, the applicant herein instituted a suit in the lower court to wit Busia CMC ELC No. E005 of 2025 seeking judgment against the respondents, jointly and severally, for: -a.An order that any entries made in the land register delineating land title number Marach/Esikoma/1492 (suit property) be cancelled forthwith;b.A permanent injunction restraining the 1st, 2nd, 3rd and 4th defendants (now respondents) their servants and/or agents claiming through them from interfering, delineating, selling, disposing, or in any other way dealing with the suit property;c.Costs of the suit;d.Any other relief that the Court may deem fit to grant. 2.From the pleadings filed in the instant suit/application (the notice of motion dated 24th February 2026) and the response filed in respect thereof (the replying affidavit sworn by the 1st respondent), I gather that alongside the plaint, the applicant filed a notice of motion dated 16th September 2026 in which he sought a temporary injunction against the 1st, 2nd, 3rd and the 4th respondents in terms of prayer (b) in the plaint, pending the hearing and determination of the suit. I also gather that vide a ruling delivered on 22nd January 2026, the trial court dismissed the applicant’s application for interlocutory reliefs with costs to the respondents. 3.Dissatisfied with the decision of the trial court, the applicant filed the instant suit/application seeking leave to file an appeal against the decision of the lower court, out of time. The applicant also seeks a temporary injunction to restrain the respondents from trespassing on, wasting, constructing on, alienating or otherwise interfering or dealing with the suit property pending the hearing and determination of the application and the intended appeal. 4.The application is premised on the grounds that the applicant was dissatisfied with the decision of the lower court; that the applicant is desirous of filing an appeal against the decision of the lower court; that owing to inability of the applicant to access her counsel, the applicant was unable to file the appeal within the time stipulated in law for filing an appeal and that the intended appeal is arguable and has good chances of success. 5.The application is supported by the affidavit of the applicant sworn on 24th February 2026, in which the grounds on the face of the application are reiterated. Attached to the supporting affidavit is a draft Memorandum of Appeal. 6.In reply and opposition to the application, the 1st respondent swore and filed an affidavit (replying), dated/sworn on 19th March 2026 in which she terms the application incompetent, frivolous and an abuse of the court process. According to the 1st respondent, the applicant has not given any satisfactory reason(s) why the intended appeal was not filed within the prescribed time; that granting the orders sought would stall the hearing and determination of the main suit which is pending in the lower court and that this court lacks jurisdiction to grant the injunctive orders sought. Further, that the appeal has no chance of success as the applicant is appealing against a negative order. The 1st respondent has annexed the plaint filed in the lower court to her replying affidavit. 7.Pursuant to directions to the effect that the suit/application will be disposed of by way of written submissions, the parties to the application filed submissions, which I have read and considered. 8.In his submissions dated 28th April 2026, the applicant has identified two issues for determination which are: -a.Whether the applicant has met the requirements for leave to appeal out of time? andb.Whether the applicant is entitled to an injunction pending appeal? 9.On whether the applicant has met the requirements for leave to appeal out of time, the applicant submits that the delay in filing the appeal was caused by financial difficulties in raising legal fees as a widow and sole breadwinner, prompt instructions to counsel once funds were available, logistical constraints and the timing of giving instructions. She submits that the delay was unintentional, reasonable and excusable, adequately explained and a mistake of counsel, that resulted from counsel’s failure to file the appeal in time, and urges the Court not to punish her for the mistake of counsel. 10.The applicant further submits that the intended appeal is not frivolous because the draft Memorandum of Appeal raises arguable issues, including misapprehension of the evidence by the trial court, erroneous findings on ownership of the land and failure to properly apply the principles governing the grant of an injunction. She urges the court to determine only whether the appeal is arguable and not on its ultimate merits. 11.The applicant submits that the respondents will suffer no prejudice if leave is granted; that the applicant risks irreparable harm through cancellation of her title, loss of proprietary rights, the appeal being rendered nugatory and that the balance of convenience favours preserving the suit property. 12.The applicant disputes the respondents’ claim that the delay was inordinate, that financial hardship is not a valid excuse, and that the appeal lacks merit. She contends that the delay in filing the appeal was only by about one week; was not excessive and that financial constraints are a valid explanation where they are promptly remedied. 13.She urges the court to grant leave to appeal out of time and grant an injunction order preserving the suit property pending the hearing and determination of the intended appeal and award costs as the court deems appropriate. 14.She relies on the case of Nicholas Kiptoo Arap Korir Salat-Vs-IEBC& 7 Others (2014), which sets out the governing principles for extension of time which emphasizes that extension of time is a discretionary and equitable remedy, requiring a satisfactory explanation for the delay, promptness in bringing the application, consideration of prejudice to the respondent, and the interests of justice 15.In the 1st and 3rd respondents’ submissions dated 22nd April 2026, they have identified the issue for determination to be whether or not the application is merited. They urge the Court to dismiss the application on the following grounds: -a.The order being appealed is a negative order that does not require any party to do or refrain from doing anything. Under Kenyan law, such an order is generally not capable of execution or appeal, except as to costs. To buttress their point, they rely on the cases of Kenya Commercial Bank Ltd-Vs- Tamarind Meadows Ltd & 7 Others [2016] Eklr and Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme-vs- Millimo, Muthomi & Co. Advocates & 2 Others [2022] KECA 491 (KLR).b.The applicant had earlier filed an application dated 16th September, 2025 seeking injunctive orders over L.R. No. Marachi/Esikoma/1492 in Busia -MCELC E005 of 2025 which is still pending before the lower court. They argue that the present appeal seeks the same orders sought in the lower court; that granting them would effectively determine the dispute before the lower court has heard and decided the case. It is their contention that entertaining the appeal would delay the hearing of the main suit and improperly turn the appellate court into a substitute for the trial court. 16.The respondents have relied on several decisions including WMM-Vs- EWG [2023], Joseph Ntombura -Vs- Godfrey Simiyu & 4 Others [2018], and P.B-Vs-J.N. [2013]) to emphasize that appellate courts should avoid making interlocutory decisions that effectively determine matters still pending before lower courts. They submit that the applicant has not adequately explained the delay in filing the appeal out of time, therefore she is guilty of inordinate delay and does not deserve the court’s discretion to extend time; that the applicant’s explanation that her counsel received instructions late is not credible, since the same advocate has represented her from the beginning of the case and had continuous instructions to prosecute it. 17.I have considered the application, the response thereto and the submissions. I find the sole issue arising from the application to be whether the applicant has made up a case for being granted the orders sought. 18.The principles that guides the court in considering an application for leave to file an appeal out of time were discussed in Odongo v Kamadi (Civil Miscellaneous Application E035 of 2025) (2026) KEHC 2129 (KLR) (12 February 2026) (Ruling) thus: -“32...Section 79G of the Civil Procedure Act provides that:Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: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……………………………44.In the case of Mbukoni Services Limited and another Vs Mutinda Reuben Nzili & 3 Others H. C at Machakos Misc. App N0 E077 of 2021 Odunga J (as he then was) held:“It is clear therefore that the decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion and just like any other exercise of discretion………… must be fixed principles and not private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The Court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. One of those judicial principles expressly provided for in the above provision is that the applicant must satisfy the Court that he has a good cause for doing so…” 45.Further, in Leo Sila Mutiso vs. Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231 the Court of Appeal set out the factors to be considered in deciding whether or not to grant such an application and these are first, the length of the delay; secondly the reason for the explanation if any for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted i.e. the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; and fourthly, the degree of prejudice to the respondent if the application is granted and whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant. 46.In the case of Thuita Mwangi vs. Kenya Airways Ltd [2003] eKLR, the Court explained that:“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive.Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”47.The Supreme Court in the case of Nicholas Kiptoo Arap Salat v IEBC & 7 Others (2014) also set out the guiding principles for grant of leave to appeal out of time as follows:a)Length of delay,b)Reason for delayc)Chances of the appeal succeeding/ arguability…” 19.On whether the applicant has made up a case for being granted the orders sought, it is clear from the above cited principles, that one of the factors that the court considers in an application for extension of time, is the whether the intended appeal is arguable. 20.Whilst in the instant suit/application the applicant contends that his intended appeal is arguable and has high chances of success, a review of the plaint filed in the lower court, annexed to the 1st respondent’s replying affidavit, shows that other than seeking reliefs listed herein above, the applicant has not given any reason or basis for seeking the reliefs sought against the respondents. I also note that the applicant has not annexed to the instant suit the pleadings and ruling which form the subject matter of the instant suit/application. In the absence of any claims made against the respondents on which the orders sought can hinge and given the fact the applicant has not annexed to the instant suit/application the pleadings and ruling which forms the subject matter of the instant suit/application, it is not possible for this court to determine whether or not the intended appeal is arguable. 21.Although the delay in filing the intended appeal is not so inordinate that it can form the basis of denying the applicant leave to file the intended appeal, failure by the applicant to annex the pleadings and the ruling on which the application is hinged renders his application fatally defective as the court lacks a basis for considering the arguability of the intended appeal and the application for temporary injunction pending appeal. 22.For the foregoing reason(s), I find the applicant’s notice of motion, dated 24th February 2026 to be lacking in merit and l dismiss it with costs to the respondents. 23.Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 2ND DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS.L. N. WAITHAKAJUDGEIn the presence of:-Ms. Wanjiru for the ApplicantN/A for the RespondentCourt Assistant: Ajwang