https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4142

County Government of Homabay v Abiga (Suing as a Legal Representative of the Estate of William Abiga) & 5 others (Environment and Land Appeal E058 of 2024) [2026] KEELC 4142 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 4142 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Appeal E058 of 2024 JW Wanyonyi, J June 30, 2026 Between County Government of Homabay Appellant and Michael Ooko Abiga (Suing as a Legal Representative of the Estate of William Abiga) 1st Respondent John Ouma Olith 2nd Respondent Benard Odhiambo Okello 3rd Respondent Erick Odhiambo Panyako 4th Respondent Jabes Nyangweso 5th Respondent Collins Otieno Odhiambo 6th Respondent Ruling 1.​On 29th November, 2024, the Appellant/Applicant herein filed an application dated the same date under Section 79G of the Civil Procedure Rules Cap 21 seeking for the following prayers:a.​Spent.b.That this Honourable Court be pleased to issue an order for extension of time to file memorandum of Appeal and record out of time as per the draft memorandum of Appeal herein. 2.​The grounds are listed as four(4) and replicated in the supporting affidavit sworn by Seth Ojienda on 29th November, 2024. 3.The one and only reason that is stated in the supporting affidavit is that the filing of the memo could not have been done within the prescribed time due to delay on instructions due to awaiting final judgment delivered. 4.On 29-1-2025, the Appellant also filed a decree a respect of the Court Order made on 13th August 2024. 5.I have looked at the records and CTS records and the memo of appeal containing one (1) and the only ground was filed on 15th August 2024 which is that the Magistrate erred in law in striking out the application dated 7th August, 2024 (ex-parte). 6.In the decree, the court did find the application defective as it offended Order 2 Rule 15 (c) of the Civil Procedure Rules. ​directions. 7.On 1/12/2024, when the application came before the then Judge handling this matter, he made directions regarding the manner in which the application was to be disposed of. 8.The court directed the Respondent to file a response and both parties were given ten (10) days each to file and exchange written submissions. 9.On 18/2/2025, time was extended and on 30/6/2025, a replying affidavit was filed by Counsel for the Respondent. 10.On 1-10-2025, the Respondents again filed another replying affidavit sworn, thus abandoning the 1st affidavit. 11.On 8th December 2025, Ochieng Advocate holding brief for Nyarige Advocate for the Appellant filed an application intimating that Appeal events have overtaken since the Respondent had filed an Appeal in ELCA No. E050 of 2024 in Homa Bay which was heard and determined on 25/11/2025. 12.That pursuant to the said ruling, an appeal was preferred to the Court of Appeal at Kisumu via Civil Appeal No. E249 of 2024. Counsel was of the view that the appeal had been overtaken by events. 13.On 6/5/2026, Ojenda Advocate for the Appellant informed the court that he had instructions to proceed conclusively. ​reply By The Respondent. 14.​The reply to the application by the Respondent is captured in the replying affidavit sworn on 30/9/2025 and filed on 1/10/2025. 15.The Respondent is opposed to the application for the following reasons:a.Leave was not sought from the court that delivered the ruling as stipulated under Order 43 Rule 1 of the Civil Procedure Rules.b.​There is a delay of four (4) months in filing the application and no explanation has been made, and the explanation given is not sufficient.c.The Appeal is overtaken by events as judgment has been delivered in the original file appeal lodged in Homa Bay ELCCA No. 050 of 2024d.The application has been overtaken by events since judgment in the High Court Appeal has been delivered.e.A copy of judgment in respect of the Appeal has been annexed and it confirms that judgment was delivered on 25th September, 2025 ​ Submissions. 16.(a)The submission by the Appellant:The Appellant/Applicant Counsel filed Submissions dated 5th December 2024 together with a list of authorities.The Appellant submits that the Court has unfettered jurisdiction to extend time and will be guided by the length of delay, whether it is sufficient explained, whether the appeal is arguable and whether the Respondent will be prejudiced.Counsel relies on the authority of Paul Musili Wambua versus Attorney General and 2 others (2015) and Stanely Kahoro Mwangi and 2 Others Versus Kanyamwi Trading Company Limited (2015) eKLR which are binding and which give guidance on the exercise of discretion.(b)Submissions by the Respondent:The Respondent through their Advocate filed their submissions on 6/10/2025. 17.The Respondents state that the applicant has failed to demonstrate sufficient cause for delay, that the order being appealed against was delivered on 13th August 2024 and the Application was filed 4 months after, and the further appeal and instant application have been overtaken by events, judgment having been lodged against the lower court judgment in Homa Bay ELCCA E050 of 2024 in which judgment was delivered on 25th September, 2025, and the applicant has not demonstrated a satisfactory explanation for the delay, the draft memorandum of appeal is not annexed for consideration, that the respondents have a legitimate expectation that this matter would be finalized within the timelines prescribed by law, and lastly, that extension of time is not a matter of right. 18.The Respondents ultimately seek for dismissal of the application. Issues For Determination 19.​ I have considered the application, replying affidavit, and submissions filed. 20.In my view, two issues arise for determination under which a court will grant or reject such an application.a.Conditions for extension of time to file an appeal out of time.b.Whether the Applicant has satisfied the above conditions. ​Disposition of the Issue 21.​ Section 79G of the Civil Procedure Act makes the following provision:​"Every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding from such period any time which the court may certify as having been requisite for the preparation and delivery of a copy of the decree or order. Provided that any 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." 22.Under the provision of Section 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules, the Court has powers to enlarge time required for performance of any act where such time has expired. 23.The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat versus IEBC & 7 Others [2014] eKLR set down the applicable principles to be met in granting an application for leave to appeal out of time these area.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 extension of time has the burden of laying a basis to the satisfaction of the Courts.c.Whether the court should exercise the discretion to extend time is a consideration to be made on a case-to-case basis.d.Whether there is a reasonable reason for delay. The delay should be explained to satisfaction of the Court.e.Whether there will be any prejudice suffered by the respondent if the extension is granted.f.Whether the applicant has been brought without undue delay. 24.Justice Okongo (as he then was) while considering an application for leave in the case of Joel Oundu versus Charles Ohuru Otieno in Kisumu ELC Miscellaneous Application number E027 of 2023 made this observation.“Section 16 A (i) of the Environment and Land Court Act 2011 provides that all appeals to this Court from Subordinate Courts shall be filed within 30 days from the date of decree or order appealed against. 25.Section 16A (2) of the said Act provides that;“An appeal may be admitted out of time if the appellant satisfied the court that he had a good and sufficient cause for not filing the appeal in time. 26.The Court of Appeal in the Sila Mutiso versus Kose Hellen Wangare Mwangi (1999) eKLR held as follows:“It is now we have settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which the court take into account in deciding whether to grant an extension of time are first : The length of the delay, secondly the reason for the delay, thirdly (possibly/ the chances of appeal succeeding if the application is considered ,and fourthly ,the decree of prejudice to the respond if the application is granted. 27.The Court will now address the legal position on matters which require leave before filing an appeal. 28.The matter that gave rise to the appeal was striking out an application seeking to join the County Government of Homa Bay to the proceedings. The court found that the application offended order 2 Rule 15 (c) of the Civil Procedure Rules. 29.Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules set out decrees /orders that are appealable as a matter of right from the following orders.“An appeal shall be as a matter of right from the following orders and shall also lie from any other order with leave of the court to which an appeal would be if leave were granted.(I)a)An order of Superseding an arbitration where the award has not been completed with the period allowed by the court.b)An order on an award stated in the form of a special case.c.An Order modifying a correcting an award.d.An order staying or refusing to stay a suit where there is an agreement to refer to arbitration. ​​e.An Order filing a refusal to file an award in an arbitration without the intervention of the court.f.An Order under section 64.g.An Order under any of the provision of this Act imposing the arrest or dentition in Prison of any person except where the arrest or dentition is in execution of a decree.h.Any Order made under the rules from which an appeal is expressly allowed by the rules.(II)No appeal shall lie in any order passed in appeal under this section on the other hand. Order 43 of the Civil Procedure Rules list those orders from which appeals would lie as a matter of right. The order provides.1(i)An appeal shall lie as of right from the following orders and rules under provision of section 75 (i) (h) of the Act.a.Order 1 (Parties to the suit).2.An appeal shall be with leave of the court from any other order made under these Rules. 30.In the case of Isaac Mbugua Ngwachu versus Stephen Gicholi Kaara (2021) eKLR the Court considered an appeal from refusal and stated.“From the reading of the Provisions of the above order 43(i) It is clear that it sets out the orders from which appeals would lie as a matter of right and at Order 43(2) which is couched in Mandatory terms and provides that any appeal from Orders not listed in Order 43(i) shall only lie with leave of the Court.Section 75 then states that such leave to appeal shall be made to the Court of first instance and can be made at the time the Order is made or within fourteen days from the date of such order, and order 43(4) expounds on the order which includes an Order granting the relief applied for or an Order refusing such relief”. 31.The Court of Appeal in the case of Nyutu Agrovet versus Airtel Networks Limited (2015) eKLR elaborated on the consequences of failure to seek leave as hereunder.“Where there is no automatic right to appeal as stipulated under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules that the appellate Court had no jurisdiction to hear or determine an appeal under such leave was first sought and obtained. 32.Regarding joining of the party to a suit the Supreme Court in application number E026 of 2023 Everton Coal Enterprises Limited versus Rose Wakanyi Karange and 5 others observed thus.“Noting that the original disputes between the 1st to 4th Respondents and the 5th and 6th Respondents having been settled in a judgment rendered on 29th July, 2016 there were no proceedings to which the applicant could properly for four years. Later on, 5th June 2020, when the ruling by the first bench of the Court of Appeal was rendered. The question has been settled in long thread of past decisions for example in JMK Versus MWM and Another (2015) eKLR the court stressed that:“An application for joinder of parties can be filed only in pending proceedings that the Power of the Court to add a Party to Proceedings can be exercised at any state at the Proceedings, either before or during trial, and that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done, that the rule becomes inapplicable." 33.On the issue of extending time, while considering the reasons advanced for delay, Justice J.R. Karanja in the case of Ismael Cherubet & Another vs. Gladys Chepkunui & Another, Civil Appeal E031 of 2024 at Kericho, found that there was an uncertain situation as to the actual date of delivery of judgment and, most importantly, whether parties or anyone of them attended Court for judgment, and found that parties were deserving of the exercise of discretion. 34.In the case of Magdelene Wanjiku Muchoki & Another Versus Simon Mugwe Chege, Thika HCCA Misc. Appl. No. E202 of 2025, judgment was delivered on 21st August, 2025 and the application to file an Appeal out of time was filed on 28th October, 2025. The Court found that they had not given any plausible explanation for the delay of about two months, and no evidence had been annexed to support their allegation. 35.In the case of UAP Insurance Ltd Vs. Aberd Ramadhan, Mombasa HCCA Number E103 of 2023, by Justice Ngaah, while considering Order 43 of the Civil Procedure Rules, did find and hold that a preliminary objection does not fall under the rules referred to, that leave is mandatory, and ought to be obtained. He further held in his view that in the absence of leave to appeal, the order extending time to file an appeal would be of no consequence. 36.In view of the law and decisions referred to above, is the Applicant entitled to the Orders sought for? 37.On 12th August, 2024, the Appellant’s Counsel filed a Memorandum of Appeal dated 12th August, 2024 arising from a decision made on 7th August, 2024. 38.However, the same was not paid for, as can be seen from the red prints. 39.On 29th November, 2024, which is a month thereafter, an application seeking extension of time to file an appeal was filed in court. 40.The reason given for failing to file was due to delay of instructions, due to awaiting the final judgment. 41.I have looked at the Affidavit in support of the application sworn on 29th November, 2024where an annexure marked "SO1" has been referred to but NOT attached. 42.On the same date, Counsel filed a Memorandum of Appeal and Court Order separately, but the same was not marked as required of annexures. The documents are in limbo and cannot be ascribed to the current application. 43.Nonetheless, even if the same were to be considered as attached, the position remains the same. 44.The Appellant made an application to be joined to the suit, but an objection was raised and ultimately the application was struck out. However, the Appellant chose not to attach a copy of the application and the objection raised. The Order attached confirms that preliminary issues of law were raised. 45.After the striking out of the application, the Appellant filed a Memorandum of appeal but never paid for the same. 46.The reason given for the delay is that the final judgment was being awaited and also instructions were yet to be given. 47.I find the explanation for delay not convincing because the interest of the Appellant was specifically limited to the ruling , and, not the final judgment. Nothing would have prevented the Appellant from seeking leave to appeal from the ruling delivered on 7th August, 2024, without necessarily waiting for the final Judgment. It appears the Appellant chose to sidestep the ruling and switched to fight mode. 48.Equity aids the vigilant, not the indolent – meaning the legal system favours those who pursue their rights vigorously and with due diligence. 49.For a Court to exercise discretion, a deserving party ought to appreciate that extension of time is not a matter of right but an equitable remedy. While the Law does not set a stop watch on what Constitutes inordinate delay, the explanation provided must be reasonable and Credible as was held in the case of Nichols Kiptoo (Supra) 50.The other crucial issue for consideration is whether leave was required before filing an appeal or application to appeal out of time. 51.In my view, an appeal against an interlocutory order does not lie as a matter of right under Order 43 Rule 2 and Section 75 of the Civil Procedure Rules. 52.Where an appeal is filed without leave, the same is not properly before the court. Yet still through this application, the applicant wants the Court to Sanitize an appeal that flouts the mandatory provision of Law. 53.The right of appeal under the said order applies to interlocutory orders, and if a party desires to avail himself of the privilege to appeal he/she ought to do so before the final disposal of the suit. 54.A party cannot be permitted to wait until after the final disposal of the suit and then appeal against the interlocutory order without appealing from the decree in the suit. 55.I take refuge in the Supreme Court decision of Everton Coal Enterprise (Supra) that when proceedings are finalized, a party cannot be joined in the proceedings. 56.It is indeed not in dispute that the lower Court delivered a judgment and the same became a subject of the Court in appeal. As of now, there is nothing left for determination. 57.Even if the Court were to entertain the appeal, it would be an exercise in futility. 58.Had Counsel for the Appellant headed to wise counsel from his colleagues and immediately throw in the towel, we would not be belaboring with issues to the tail end. 59.Considering this application all round, I find that it does not meet the threshold for exercising my discretion in favor of the Applicant. 60.In the first instance, the Court lacks jurisdiction to grant the orders sought for want of leave. 61.Secondly, the application has been overtaken by events. 62.I proceed to strike out the application. 63.Each party to bear their own costs. RULING DELIVERED, DATED AND SIGNED VIA THE TEAMS’ PLATFORM ON THIS 30TH DAY OF JUNE 2026.JUSTICE, JOHN WALTER WANYONYI- JUDGEIn the presence of;Learned Counsel, Ojiambo for the Appellant -Present.Learned Counsel Ms. Nyarige for the Respondent – AbsentCourt Assistant; Ms. M. Awino.Court: File is closed.