https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1342

Muchina v Micere (Civil Application E013 of 2026) [2026] KECA 1342 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1342 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E013 of 2026 M Ngugi, JA July 3, 2026 Between Emmanuel Njogu Muchina Applicant and Judy Njeri Micere Respondent (Being an application for extension of time to lodge and serve a notice of appeal and record of appeal out of time from the judgment of the Environment and Land Court at Kerugoya (B.N. Olao, J.) dated 18th June 2021 in Kerugoya ELC Case No. 94 of 2016) Ruling 1.In the application dated 20th February 2026, the applicant, Emmanuel Njogu Muchina, has sought some 10 orders from this Court in respect of L. R No. Kiini/Sagana/3362 (hereafter ‘the suit property’). The essence of his application and the orders therein is to restrain the respondent from evicting him and his children from the suit property. He also seeks orders of stay of execution of the orders issued in Kerugoya ELC Case No. 94 of 2016 pending the hearing and determination of the application. 2.The application is expressed to be brought under, inter alia, rules 1(2), 4, 5(2), 41, 42, 43 and 47 of the Court of Appeal Rules, 2010 (which, it is worth observing, are no longer in force), and sections 3A and 38 of the Appellate Jurisdiction Act, and various constitutional provisions. Under rule 55(2) of this Court’s Rules 2022, orders of stay of execution or prohibitory and preservatory orders over the suit property or for maintenance of the status quo, are outside the jurisdiction of a single judge of this Court. The only order that can be said to be within my jurisdiction as a single judge is prayer no. 7 in which the applicant prays for “…leave to file an Appeal out of time and extension of time pending hearing and determination of this Application.” 3.The application is based on 14 grounds set out on its face and in an affidavit sworn by the applicant on 20th February 2026. The applicant avers that he had filed ELC Case No. 94 of 2016 seeking a declaration that he was entitled to one (1) acre out of the suit property pursuant to a sale agreement dated 13th January 1997. He further avers that there had been a matter before the Land Disputes Tribunal, being Wang’uru SRM Arbitration Case No. 3 of 2009 which was determined in his favour and an order issued to the respondent to transfer one acre of the suit property to him. The said order was, however, quashed in Judicial Review Miscellaneous Application No. 15 of 2004. He further filed PMCC No. 89 of 2016, which was consolidated with Civil Case. No. 94 of 2016. In the judgment dated 18th June 2021, the court allowed the respondent’s counterclaim in which the respondent sought orders for the eviction of the applicant. 4.The applicant states that the issues determined in the arbitration proceedings were substantially the same as those litigated in the ELC matter but that he did not bring those matters to the court in ELC No. 94 of 2016 due to lack of knowledge. He states that he fears losing his family home if the eviction orders issued in favour of the respondent are executed, and he and his family will suffer irreparable loss and damage. 5.The respondent opposes the application by a replying affidavit which she swore on 1st April 2026. It is her deposition that she is the registered proprietor of the suit property, having been registered as such on 18th March 2004, and that the applicant instituted Kerugoya ELC No. 94 of 2016 claiming one acre of the suit property by adverse possession. She states that in the judgment dated 18th June 2021, the applicant’s claim was dismissed, the court declaring him an unlawful occupier and issuing an order for his eviction. The respondent avers that the applicant has offered no sufficient explanation for the delay of approximately four years and eight months before seeking leave to appeal. 6.According to the respondent, no evidence has been produced to support the allegation that depression or ill health prevented the applicant from lodging an appeal in time. Further, that she was awarded costs following taxation; has obtained eviction and demolition orders; and has merely been taking steps to execute a valid judgment. It is her averment that the applicant has not established any basis for the grant of the orders sought. 7.The applicant filed submissions dated 9th March 2026 in which he repeats his averments in his affidavit in support of the application regarding the various disputes over the suit property. It is his submission that in light of the proceedings in Wanguru, Kerugoya ELC No. 94 of 2016, which involved the same parties, the same land and the same issue of ownership, was barred by the doctrine of res judicata under section 7 of the Civil Procedure Act. He submits that the ELC ought not to have entertained the matter, and that execution should be stayed because he is elderly, has occupied the land for many years and faces eviction and demolition of his home.He cites in support, among others, the case of Kenya Commercial Bank Limited & Another v Muiri Coffee Estate Limited & 3 Others [2016] eKLR. 8.In submissions dated 1st April 2026, the respondent states that judgment in Kerugoya ELC No. 94 of 2016 was delivered on 18th June 2021 while the present application was filed on 20th February 2026, approximately four years and eight months later. The respondent submits that the delay is inordinate and unexplained; she has already obtained eviction and demolition orders and is in the process of execution; and that granting the orders sought would unfairly prejudice her by preventing her from enjoying the fruits of a valid judgment. The respondent cites the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (1999) 2 EA 231 and urges the Court not to grant the orders sought. 9.Rule 4 and 55(1) of this Court’s Rules grant a single judge of this Court the jurisdiction to grant extension of time for the doing of any act prescribed under the Rules. The principles for the exercise of the Court’s discretionary power under rule 4 are well settled and were enunciated in the case of Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi (supra). The Court is required to consider the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is granted- see also Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 10.In this case, the judgment that the applicant seeks to appeal against was delivered on 18th June 2021, while the present application was filed on 20th February 2026. The application for extension of time has therefore been brought after a delay of four years and eight months. By any measure, that is an inordinate delay. 11.The explanation advanced for the delay is that the applicant suffered depression. He has not placed any medical evidence before the Court to show that he indeed suffered from depression that incapacitated him and prevented him from taking steps to file an appeal, and for an extended period of over four years. 12.In considering whether or not to grant extension of time, the Court is also required to consider the possibility of the appeal succeeding should the orders sought be granted. The applicant argues that he intends to raise on appeal the ground of res judicata, the issue of his entitlement to one acre out of the suit property having been determined in his favour in Wanguru Case No 3 of 2009. 13.In the averments in support of his application, however, the applicant states that the decision in his favour in Wanguru was quashed on the application of the respondent, as a result of which he filed ELC 94 of 2016 the decision from which he wishes to appeal. In my view, given the facts placed before me, I am not satisfied that, even had I not found that the delay in this case is inordinate, there is any possibility of the applicant’s appeal succeeding. 14.The final factor to consider is the prejudice likely to be suffered by the respondent should the orders sought be granted. The judgment in this matter was rendered on 18th June 2021, five years ago. She has taken steps towards execution of the orders in her favour, and it would appear that it is the threat of execution that has moved the applicant into action. In the circumstances, and bearing in mind that litigation must come to an end and a successful litigant is entitled to enjoy the fruits of her judgment, it would cause great prejudice to the respondent were the orders sought herein granted. 15.It is my finding, therefore, that the order for extension of time sought in the application dated 20th February 2026 is without merit, and it is hereby dismissed. That being the case, the other prayers sought in the application also fall by the wayside. 16.The respondent shall have the costs of the application. DATED AND DELIVERED AT NAIROBI, THIS 3RD DAY OF JULY, 2026.MUMBI NGUGI...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar