https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3326

Emerge Africa Limited v Otieno & 5 others (Land Case Appeal E092 of 2025) [2026] KEELC 3326 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3326 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case Appeal E092 of 2025 SO Okong'o, J June 3, 2026 Between Emerge Africa Limited Applicant and Joshua Omwa Otieno 1st Respondent Christopher Olang 2nd Respondent Samwel Owiti Otieno 3rd Respondent Henry Owiti Obala 4th Respondent Dr Gradus Lusi Warindu 5th Respondent Jane akinyi Matengo (Sued as the administratrix Of The Estate Of More Ogone - Deceased) 6th Respondent Ruling 1.I have before me the applicant’s application brought by way of Notice of Motion dated 29th October 2025. The applicant has sought leave to file an appeal out of time against the ruling and orders made by Hon. L.Ogombe SPM on 8th July 2025 in Kisumu CMC ELC No. 240 of 2018, Joshua Omwa Otieno & 3 others v. Henry Owiti Obala & 2 others, (the lower court) and a stay of execution of the judgment delivered in the same matter on 13th January 2025 pending the hearing and determination of the intended appeal to this court. The application was filed on 29th October 2025, about 3 ½ months after the ruling sought to be appealed. 2.The applicant has averred that he is aggrieved by the lower court's ruling dated 8th July 2015 and intends to appeal against it. The applicant has contended that the said ruling was delivered in the absence of its representative, and it only learnt of it on 25th October 2025, after the expiry of the time allowed for appeal against the same. The applicant has averred that its intended appeal has overwhelming chances of success. The applicant has averred that it was in danger of being evicted from the land parcel, Title No. Kisumu/Korando/4821, a property it purchased and had occupied for over 5 years. 3.The 1st, 2nd, 3rd and 6th respondents have opposed the application through grounds of opposition dated 19th November 2025, and a replying affidavit sworn by the 2nd respondent on 25th November 2025. The 1st, 2nd, 3rd and 6th Respondents have contended that the applicant has not provided an explanation for the delay in filing the appeal. The 1st, 2nd, 3rd and 6th respondents have averred that the applicant was represented by an advocate in the lower court, and it has not made any attempt to give any reasons or explanation why the said advocate did not file the appeal within the prescribed time. The 1st, 2nd, 3rd and 6th respondents have averred that the present application was filed 3 months and 21 days from the date of the ruling sought to be appealed. The 1st, 2nd, 3rd and 6th respondents have averred that the application was filed after an inordinate delay, and as such, the applicant does not deserve the exercise of the court’s discretion. The 1st, 2nd, 3rd and 6th respondents have further averred that the applicant’s intended appeal is frivolous and vexatious and stands no chance of ever succeeding. The 1st, 2nd, 3rd and 6th respondents have further averred that the judgment sought to be stayed by the applicant has already been executed, with the title to Kisumu/Korando/4821 owned by the applicant, among others, being cancelled. The 1st, 2nd, 3rd and 6th respondents have averred that the intended appeal has already been rendered nugatory, and the institution of the same would be in vain. The 1st, 2nd, 3rd and 6th respondents have averred that the orders sought by the applicant are incapable of execution. 4.The 4th and 5th respondents have supported the application through separate replying affidavits dated 23rd November 2025 and 25th November 2025, respectively. The 4th and 5th respondents have averred that the applicant should have been given its day in court. The 4th and 5th respondents have averred that the applicant was not a party to the lower court suit, yet the judgment of the court affected it. The 4th and 5th respondents have averred that the applicant was condemned unheard in breach of the rules of natural justice. 5.On 12th November 2025, the court directed that the application be argued by written submissions and set timelines for the filing of the same by the various parties. None of the parties has filed submissions as directed by the court. I have considered the application together with all the affidavits filed in support thereof. I have also considered the grounds of opposition and affidavits of the 1st, 2nd, 3rd, and 6th respondents, filed in opposition to the application. The first limb of the application is seeking an extension of time within which to file an appeal against the ruling of the lower court made on 8th July 2025, while the second limb is seeking a stay of execution of the judgment of the same court delivered on 13th January 2025 by the same court pending the hearing of the intended appeal. 6.Section 16A (1) of the Environment and Land Court Act 2011 provides that all appeals to this court from subordinate courts and local tribunals shall be filed within 30 days from the date of the decree or order appealed against. Section 16A (2) of the said Act provides that:An appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.” 7.In Hon. Attorney General v. the Law Society of Kenya & Another, Civil Appeal (Application) No. 133 of 2011(UR), Musinga, J.A stated as follows on the meaning of the word sufficient cause:Sufficient cause” or “good cause” in law means:“…the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused”. See BLACK’S LAW DICTIONARY, 9th Edition, page 251.Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” 8.The court’s power to extend the time within which to file an appeal against a decision of the lower court is discretionary. In Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others [2014] eKLR, the Supreme Court stated that:Extension of time is not a right of a litigant. It is an equitable remedy that is only available to a deserving party at the discretion of the court. A party who seeks extension must place before the court sufficient material to explain the delay. The court has to consider the length of delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice that would be suffered.” 9.A party approaching the court for an extension of time must demonstrate that it deserves the exercise of the court’s discretion. The ruling sought to be appealed was delivered on 8th July 2025. The appeal against the same should have been filed by 8th August 2025. The present application was filed on 29th October 2025, 82 days after the date when the applicant was supposed to file the appeal. 10.I disagree with the respondent that a delay of 82 days to file an appeal or an application for an extension of time to appeal is inordinate in the circumstances of this case. I find the applicant's explanation for the delay reasonable. Although the applicant was represented by counsel, it only became aware of the impugned ruling on 1st October 2025. This fact has not been contested by the 1st, 2nd, 3rd, and 6th respondents. I am also persuaded that the applicant has an arguable appeal. I am inclined to exercise my discretion in favour of granting the applicant the leave sought. The applicant has given a reasonable explanation for the delay in filing the appeal and has also demonstrated that the intended appeal is arguable. 11.The court’s power to grant an order of stay of execution pending appeal is set out in Order 42 rule 6 of the Civil Procedure Rules. Order 42 rule 6 (1) and (2) of the Civil Procedure Rules provides that:6.(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub-rule (1) unless –(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as ultimately be binding on him has been given by the applicant.” 12.In Halai & another v. Thornton & Turpin (1963) Ltd. [1990] KECA 65 (KLR), the court stated as follows on this court’s power to grant an order of stay of execution pending appeal:Thus, the Superior Court’s discretion is fettered by three conditions. Firstly the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security. The application must, of course, be made without unreasonable delay.” 13.In Kenya Shell Limited v. Karuga (1982 – 1988) I KAR 1018, the court stated that:It is usually a good rule to see if order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 14.I have noted that the applicant is aggrieved by the lower court's ruling dated 8th July 2025 and the judgment delivered on 13th January 2025. However, the applicant has only sought to appeal against the ruling of 8th July 2025. There is no appeal against the judgment of 13th January 2025. The stay sought is, however, against the judgment of 13th January 2025. I agree with the 1st, 2nd, 3rd, and 6th respondents that the judgment, the execution of which the applicant has sought to stay, has been fully executed. There is nothing left to stay. The subdivision of Title No. Kisumu/Korando/90, which gave rise to, among others, land Title No. Kisumu/Korando/4821, owned by the applicant, has been cancelled. The land Title No. Kisumu/Korando/4821 has been cancelled, and the land comprised therein reverted to the original Title No. Kisumu/Korando/90. The reconstituted Title No. Kisumu/Korando/90 has been registered in the names of the 1st, 2nd and 3rd Respondents and others who were not parties to the lower court suit. It is my finding that an order of stay of execution of the judgment dated 13th January 2025 will serve no purpose in the circumstances. A case has therefore not been made out for the grant of the stay order sought by the applicant. Conclusion 15In conclusion, the applicant’s application succeeds in part. The applicant is granted leave to file an appeal out of time against the ruling of Hon. L.Ogombe S.P.M delivered on 8th July 2025. The appeal shall be filed within 14 days from the date hereof. Each party shall bear its costs of the application. WRITTEN AND SIGNED AT NAIROBI BYS. OKONG’OJUDGEDELIVERED, DATED AND COUNTERSIGNED AT KISUMU ON THIS 3RD DAY OF JUNE 2026C. C. OLUOCHJUDGERuling delivered virtually through Microsoft Teams Platform in the presence of:Elijah Oloo representing the ApplicantMr. Patrick Lumumba for the 1st , 2nd , 3rd and 6th RespondentsNo appearance for the 4th RespondentNo appearance for the 5th RespondentNo appearance for the 3rd RespondentJoanne Court Assistant