Sinjiri v Atsango (Environment and Land Miscellaneous Application E003 of 2026) [2026] KEELC 3640 (KLR) (10 June 2026) (Ruling)

Sinjiri v Atsango (Environment and Land Miscellaneous Application E003 of 2026) [2026] KEELC 3640 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3640 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Miscellaneous Application E003 of 2026 A Nyukuri, J June 10, 2026 Between Daniel Wabuti Sinjiri Applicant and Ruth Flora Atsango Respondent Ruling Introduction 1.Vide a Notice of Motion dated 10th February 2026, the applicant sought the following orders;a.Spentb.Spentc.That pending the hearing and determination of intended appeal, the Honourable court be pleased to stay execution of the judgment and/or decree in Mumias MCELC NO. 132 OF 2018 dated 8th August 2023 and purportedly delivered on 8th November 2023, together with all consequential orders arising therefrom.d.That this Honourable court be pleased to grant the applicant leave to file the appeal out of time against the judgment and/or decree by Hon. Cheruiyot (R.M) dated 8th August 2023 and delivered on 8th November 2023 in Mumias MCELC NO. 132 OF 2018.e.That this Honourable court be pleased to extend time for filing the appeal against the judgment and/or decree by Hon. Cheruiyot (R.M) dated 8th August 2023 and delivered on 8th November 2023 in Mumias MCELC NO. 132 OF 2018.f.That leave be granted to the firm of Wamalwa and Echesa Co. Advocates to come on record for the applicant in these proceedings in the place of the firm of Athungá & Co. Advocates.g.That the Memorandum of Appeal annexed hereto be deemed as properly filed upon payment of the requisite court fees, or that the applicant be granted leave to file the same within such time as the court may direct.h.The costs of and incidental to this application be borne by the respondent. 2.The application is supported by the affidavit sworn by the applicant on 10th February 2026. The applicant’s case is that judgment in Mumias MC ELC Case No. 132 of 2018 was alleged to have been delivered by Hon. Cheruiyot on 8th November 2023 when the said Judicial officer was on transfer, thus creating the uncertainty and that the same raised a procedural flaw in the proceedings. That judgment was delivered without notice to the applicant and his counsel and in his absence and that the applicant was unaware of the same. 3.Further that the applicant became aware of the judgment in February 2026, when the respondent filed a fresh suit and served him being Mumias MCELC NO. E101 OF 2025 against the registered owner of parcel No. S/Wanga/Lureko/1870, a third party who later informed the applicant. That the delay in filing the appeal was not deliberate or inordinate. That the appeal raises serious issues concerning locus standi, standard of proof of fraud and material contradiction in evidence and the applicant’s right to fair hearing. That the decision in Mumias CM ELC Case No. 132 OF 2018 is being relied upon to file the subsequent suit. 4.The application was opposed. The respondent filed replying affidavit dated 1st April 2026. She stated that the respondent was duly represented in the lower court by the firm of Athungá & Company advocates. That prior to delivery of the judgment, the trial court issued notice of delivery of judgment on both advocates. That upon delivery of judgment, the applicant’s advocate was served with post judgment processes including bill of costs and taxation notices. That it therefore cannot be true that the applicant was unaware of the judgment. That the judgement having been delivered on 8th November 2023, and the current application having been filed in 2026, there is a delay of 3 years which is inordinate, unreasonable and not sufficiently explained. That the applicant has not stated to have taken any steps towards exercising due diligence and that the suit property is not registered in the name of the applicant and therefore he will not suffer loss. 5.The application was disposed by way of written submissions. On record are submissions filed by the applicant dated 25th May 2026 and those by the respondent dated 1st April 2026; both of which the court has duly considered. Analysis and determination. 6.The court has carefully considered the application, response thereto as well as rival submissions. The issues that arise for the court’s determination are;a.Whether the firm of Wamalwa and Echesa ought to be granted leave to represent the applicant in this matter in the place of Athunga & Company Advocates.b.Whether the applicant has met the threshold for grant of leave to file appeal out of time; andc.Whether the applicant deserves an order of stay of execution of judgment in Mumias MC ELC CASE NO. 132 OF 2018 pending hearing and determination of intended appeal. 7.Order 9 Rule 9 of the Civil Procedure Rules provides that where a party intends to act in person or change their advocate in a matter where judgment has already been made, they can only do so with leave of court. In the instant case, this is a fresh matter separate from Mumias CM ELC CASE NO. 132 OF 2018. There is no judgment entered in the instant suit and therefore the prayer for leave to be granted to the firm of Wamalwa & Echesa Advocates to come on record in the place of Athungá & Company Advocates is superfluous and therefore the same is declined. The firm of Wamalwa and Echesa Advocates does not need leave to represent the applicant in the instant matter. 8.Regarding the prayer for extension of time, section 79G of the Civil Procedure Rules provides for 30 days as the period within which to file appeal against a decision of the lower court. However, the court has discretion to extend time where a good and sufficient cause for delay is shown. 9.In considering whether to allow or deny an application to extend time, the court considers inter alia the length of the delay, the reason for the delay and the prejudice to be suffered by the respondent. The applicant seeking extension of time ought to explain the reason for the delay to the court’s satisfaction. 10.In the case of Muya v Tribunal Appointed to investigate the conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (Petition 4 of 20200 [2022] KESC 16 (KLR) the Supreme Court of Kenya held as follows;“143 the facts should not be on the length of the delay per se but also on the justification and reasons, which in turn must be rational and plausible.” 11.In Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR) the Supreme Court held as follows;“(19)where there is delay, the court must interrogate whether the same is justifiable and thus excusable, or not. In order to do that, the court must interrogate the circumstances of the case.” 12.On mistakes of counsel causing delay, the Supreme Court in the case of Gaciani & 11 Others v Kimanga & Another (Application E004 OF 2023) [2023] KESC (KLR), held as follows;“Whereas mistakes by an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated efforts or due diligence. Through evidence or correspondence of the follow up with the advocates or to pursue their rights as we found in George Kangéthe Waruhiu v Esther Nyamweru Munene & Another Civil Application No. 18 of 2020 [2021] e KLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.” 13.In the instant case, the decision sought to be appealed against was made on 8th November 2023, and the application for extension was filed on 10th February 2026, which is a period of two years and two months. In my view, the period of delay in this case is inordinate. 14.The applicant alleges that the trial magistrate was on transfer and it was irregular for her to deliver the judgment in the matter she had heard. In my view, there is nothing irregular for a trial magistrate who is on transfer to deliver a judgment in respect of a matter they heard to conclusion before they were transferred. A transfer cannot stop a judicial officer from delivering a judgment in a matter they heard to conclusion. 15.The applicant insisted that he had not been made aware of the date of judgment, yet he does not state the steps he took in following up on his case between 2023 to 2026. Besides he has not disputed the fact that the bill of costs against him was served on his advocate and the same was duly taxed. Therefore, I am not persuaded that the applicant was not aware of the delivery of the judgment by the trial court, for a period of over two years. 16.In the premises, I find and hold that the reason for delay given by the applicant is inexcusable. As no leave to appeal out of time has been granted, the question of stay of execution pending intended appeal has become moot and therefore not worthy of interrogation. 17.Ultimately, I find no merit in the application dated 10th February 2026, which I dismiss with costs. 18.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 10TH DAY OF JUNE, 2026A. NYUKURIJUDGEIn the presence ofNo appearance for the applicantMs Mulama for the respondentCourt Assistant: Delphine