https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1236

Kariuki v Gatongu Farmers Co Ltd & 2 others (Civil Application E060 of 2026) [2026] KECA 1236 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1236 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E060 of 2026 MB Kairaria, JA July 3, 2026 Between Eliud Muya Kariuki & 33 others Applicant and Gatongu Farmers Co Ltd 1st Respondent The Attorney General 2nd Respondent The Commissioner of Lands 3rd Respondent (An application for leave to file an appeal out of time and stay of execution from the judgement and decree of the Environment and Land Court at Nakuru [A.O. Ombwayo, J.] delivered on 20th February 2026 in ELC Case No. 164 of 2012) Ruling 1.The applicants were interested parties in Nakuru ELC No. 164 of 2012 in which the principal parties were Gatongu Farmers Co. Ltd. as plaintiff, the Commissioner of Lands [as 1st defendant and the Attorney General as 2nd Defendant. The subject matter of the primary suit is Title NO. 6208/5[now known as Kabazi/Kabazi Block 1 Gatongu]. In the plaint Gatongu Farmers ltd sought the following orders against the Commissioner of Lands[2nd Respondent] and the Attorney General [3rd Respondents]:a.A declaration that there was no lawful surrender of Title No. 6208/5 [currently known as Kabazi/Kabazi Block 1 Gatongu ] by the plaintiff to the 1st defendant and that all the consequential steps taken by the District Land Registrar to issue title deeds on the basis of this surrender are null and void.b.An order compelling the 1st defendant to return the original title for LR No. 6208/5 [currently known as Kabazi/Kabazi Block Block 1 /Gatongu ] to the plaintiff company and a further order compelling the illegal subdivisions made in respect of Kabazi/Kabazi Block 1/1 [Gatongu] to Kabazi /Kabazi Block 1 /887[Gatongu] and subsequent issuance of title deeds.c.LR 6208/5[now known as Kabazi/Kabazi Block 1 [Gatongu] be resurveyed and titles be issued to genuine members only considering the current settlement.d.The rocky /hilly area in LR 6208/5 [now known as Kabazi/Kabazi Block 1[Gatongu] be surveyed, subdivided and titles be issued to the genuine members of the plaintiff only considering the current settlement.e.Costs of this suit.f.Any other or further relief as the court deems fit to grant. 2.The case was heard by A. O. Ombwayo J who found that the 1st Respondent had proved its case on a balance of probabilities in a judgement dated 20th February 2026 and issued orders as follows:a.A declaration is hereby made that there was no lawful surrender of title No. 6208/5 [Currently known as Kabazi/Kabazi Block 1 Gatongu] by the plaintiff to the first Defendant and that all the consequential steps taken by the District Land Registrar to issue title deeds on the basis of this surrender are null and void.b.The 1st Defendant shall return the original title for LR No. 6208/5 [now known as Kabazi/Kabazi Block 1/Gatongu to the plaintiff company.c.The 1st Defendant shall revoke and nullify the title deeds issued by the Nakuru District Land Registrar in respect of the illegal subdivisions made in respect of Kabazi/Kabazi Block1/1 Gatongu to Kabazi/Kabazi Block 1/887[Gatongu] and subsequent issuance of title deeds.d.LR 6208/5[now known as Kabazi/Kabazi Block 1/Gatongu shall be resurveyed and titles issued to genuine members only considering the current settlement.e.The rocky /hilly area in LR6208/5[now known as Kabazi Block 1 /Gatongu ] shall be resurveyed and titles be issued to the genuine members of the plaintiff.f.Costs of this suit are awarded to the plaintiff. 3.The applicants are aggrieved by that judgement and wish to appeal to this Court but are not able to do so because they did not file and serve the notice of appeal within the period prescribed by the Court of Appeal Rules. In particular the applicants did not file the notice of appeal within 14 days after the delivery of the impugned judgement that is by 6th March 2026. Instead the applicants filed their notice of appeal dated 23rd April 2026. They have now brought the Notice of Motion application dated 27th April 2026 in which they pray in the Court be pleased to extend time within which to file the notice of appeal, admit and deem the Notice of appeal dated and filed in Court on 23rd April, 2026 as having been duly lodged within the extended period. The applicants have sought those orders in prayer 2 and 3 in the application under consideration. Alternatively the applicants pray that the Court be pleased to grant leave to file the notice of appeal out of time in prayer 5 in the notice of motion application. 4.But the applicants do not stop at seeking extension of time to file the notice of appeal under Rule 4 of the Court of Appeal Rules in their application under consideration. Their application is an omnibus application that additionally seeks orders to stay execution of the impugned judgement pending the hearing and determination of the intended appeal once extension of time to file the notice of appeal is granted. In this connection the applicants pray as follows at paragraph 6 in the application:“That this Honourable Court be pleased to grant a stay of judgement and Decree of the Environment and Land Court in this matter pending the hearing and determination of the intended appeal.’’This prayer sounds under Rule 5[2] [b] of the Court of Appeal Rules ,which is a relief within the sole jurisdiction of a full bench of the Court and a single judge has no power to grant. 5.The fusing of the two reliefs in one application is contrary to the clear provisions of the Court of Appeal Rules and is improper. Quite understandably the framing of the application in that manner attracted objections from the 1st Respondent who filed a preliminary objection dated 11th May, 2026 contending that the “application is fatally defective incompetent and an abuse of the Court process for improperly conflating distinct and procedurally incompatible jurisdictions under Rule 4 and Rule 5 [2] [b] within a single omnibus motion.’’ 6.This Court has on numerous occasions deplored the practice of bringing applications seeking reliefs which can only be given by a single judge as well as other reliefs which must be sought before the full bench. As the 1st Respondent correctly pointed out the Hon. M’ Inoti JA strongly decried this undesirable practice of filing omnibus applications of this nature in Malindi and Mombasa in Richardo Fanelli & 2 others Vs Graziona[2015] eKLR. It appears like the practice has shifted its base to Nakuru. It must stop. I will not go as far as finding the entire application fatally defective or incompetent and strike it out as urged by the 1st Respondent in its preliminary objection and written submissions. I decline to do so not because the rules of procedure are not important but rather in fidelity to the dictates of Article 159[2] (d) of the Constitution of Kenya 2010 which obligates courts to determine disputes without undue regard to procedural technicalities. Consequently, I will proceed to consider the application for extension of time and decline the invitation to consider the application and prayer for stay of execution as it is not properly before me and I have no jurisdiction to entertain it. 7.The application for extension of time is premised on the grounds set out on the face of the notice of motion supported by the affidavit sworn by Eliud Muya Kariuki [the 1st Applicant] on 27th April 2026, the applicant’s written submissions dated 20th May 2026. In the supporting affidavit Eliud Muya Kariuki avers that the applicants represent over 500 members and beneficiaries whose land titles were nullified in the judgement dated 20th February, 2026, who are immensely aggrieved by the decision which extinguishes their property rights and desire to appeal the decision. They filed a notice of appeal on 23rd April 2026 which is outside the 14 days statutory period provided by Rule 77 of the Court of Appeal Rules. He maintains that the applicants had every intention of filing the notice of appeal within the 14 days statutory window but were prevented from doing so by circumstances beyond their control, in particular he asserts that their membership comprise hundreds of families and individuals many of whom are elderly, geographically dispersed in not easily accessible rural areas, requiring massive logistical undertaking to convene a meeting ,mobilize contributions from hundreds of financially strained members to raise the substantial legal fees required to instruct counsel, the process took several weeks. 8.The applicants further assert they were frustrated by administrative constraints at the Nakuru ELC Registry and despite their prompt requests for crucial documents there was systemic delay in retrieving the documents without which their advocate could not professionally evaluate the record and formulate the grounds of appeal. He adds that they acted with due diligence once they got the funds to engage counsel and have remedied their lapse by filing a notice of appeal dated 23rd April, 2026 and instructed counsel to prepare a memorandum of appeal and if granted the extension sought are ready to proceed with the appellate process without further delay. 9.The applicants contend that their intended appeal is arguable with high chances of success and submitted that; this Court has unfettered discretion to extend time under Rule 4 of the Court of Appeal Rules; the principles governing the exercise of that discretion are well settled and cited the locus classicus case of Leo Sila Mutiso Vs Rose Hellen Wangari Mwangi Civil Application No. Nai .255 of 1997[1999] 2 EA 231. The applicant argued that the duration of delay of about 60 days was not intentional and is excusable because those days were lost while the applicants mobilized funds for legal fees through small contributions from hundreds of members. 10.The application is strenuously opposed by Gatongu Farmers Co. ltd [the 1st Respondent] on the grounds set out in the replying affidavit sworn by its Secretary Mary Wanjiru Njenga on 9th May 2026, a preliminary objection dated 11th May 2026 and amplified in its written submissions dated 25th May, 2026. Briefly the grounds upon which the opposition to the application is mounted are: i] the applicant has improperly invoked the jurisdiction of both a single judge and a full bench and is undeserving of the court’s discretionary intervention; ii] the assertion by the 1st applicant that he depones the affidavit in support of the motion on behalf of over 500 members and beneficiaries is unsubstantiated; where there are multiple applicants one of them may only appear, plead or act for the others with their written authority; such authority must be signed by the party giving it and filed in the proceedings which is not the case here as no written authority, resolution or mandate executed by any of the purported 500 persons or even the 34 named applicants has been annexed to the affidavit to clothe him with such capacity; in the absence of such written authority the 1st applicant cannot the application is fatally defective to the extant that it is a fundamental requirement for such duly executed and filed written authority under Order 1 Rule 13 (1) and [2] of the Civil Procedure Rules. 11.On the merits of the application the 1st Respondent contended that the application is untenable in substance when weighed against the strict parameters governing the exercise of the Court’s discretion under Rule 4 of the Court of Appeal Rules because: a] the explanation proffered for the inordinate delay is wholly implausible, contrived and self- serving; b] the applicants had full knowledge of the judgment and ample opportunity to comply with the rules; c] that reliance on “logistical difficulties’’ is an afterthought intended to disguise procedural indolence and non-compliance; d] the alleged financial constraints are devoid of merit; e] the filing of a notice of appeal is a simple, inexpensive and routine procedural step which could not have frustrated the applicants and their alleged 500 members from instituting from appealing the judgment if they genuinely intended to pursue the appeal; f] Eliud Muya Kariuki is known to the 1st Respondent’s Secretary as a man of substantial means and the narrative of crippling financial incapacity is nothing more than a smokescreen calculated to evoke sympathy and not a legitimate legal basis for grant of the discretionary relief; g] the allegations relating to administrative impediments and inability to obtain documents from the registry are speculative, unsupported, and entirely devoid of any evidentiary backing; [h] no correspondence, reminder letters, registry receipts, follow up communication or any contemporaneous material to demonstrate diligence or genuine effort capable of justifying the delay. 12.The 1st Respondent submitted that the applicants have failed to meet the legal threshold for enlargement of time as enunciated in Fakir Mohammed Vs Joseph Mugambi & 2 Others Civil Application No. Nai 332 of 2004 [2004]eKLR and urged me to dismiss the application with costs. 13.Having considered the application, the affidavits in support and opposition thereto together with the rival submissions the sole question for my determination is whether or not I should exercise my discretion to extend time to the applicants to file the notice of appeal out of time. The principles and factors that I should bear in mind are well settled. It is a judicial discretion which is unfettered but which must be exercised judiciously not capriciously or whimsically. The Court considers the length of the delay, the reason for the delay, possibly the chances of the appeal succeeding in the event that the extension sought is granted, the prejudice that the respondent is likely to suffer if the extension sought is granted[see Leo Sila Mutiso Vs Hellen Wangari Mwangi[1999] 2 EA 231, the law does not set minimum or maximum period of delay but the for the applicant to be successful he or she must give a plausible and satisfactory explanation for the delay [see Andrew Kiplagat Chemango Vs Paul Kipkorir Kibet[2018] eKLR. The running thread in the decided cases is that the would be successful applicant must proffer plausible and satisfactory explanation for the delay because “extension of time is not a right of a party” but rather “an equitable remedy that is only available to a deserving party at the discretion of the court.’’ [See Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission& 7 Others [2014] eKLR. A plausible and satisfactory explanation for the delay has been analogised as the key that unlocks the court’s favorable exercise of discretion and there must therefore exist a valid or valid explanations for the delay. 14.I have considered the three explanations given by the applicants for the delay and I am not persuaded that they are either plausible or satisfactory at all. First the applicants say that the delay of 60 or so days occurred while they were in the process of mobilising over 500 members to raise funds to engage counsel but there is no iota of evidence to show that the applicants represent over 500 individuals and their families. The applicants before me are 34 named individuals who were the only named interested parties. The second explanation they give is that they needed to raise substantial sums of money to engage counsel to file the notice of appeal. But these parties were represented by another counsel at the trial. The applicants do not say that they instructed either their former or present advocates to file and serve a notice of appeal and were required to pay substantial amounts of money which they were unable to raise before setting out to mobilise and raise funds. Thirdly the Applicants say that they experienced administrative constraints in obtaining critical documents at the registry which were necessary to enable their newly appointed advocates to review, advise and formulate the grounds of appeal. But the applicants do not disclose what those crucial documents are. The applicants have also not attached any request to the court for any documents. In short no valid and satisfactory explanation for delay has been placed before me. 15.In the absence of valid and plausible explanation for the delay, I am not satisfied that the applicants are deserving of the exercise of discretion to extend time to file the notice of appeal. In the upshot, I find no merits in the application dated 27th April, 2026 and dismiss it with costs to the 1st Respondent. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JULY, 2026.MURUNGI B. KAIRARIA........................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR