https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3952

Tera v Okello (Environment and Land Case 132 of 2016) [2026] KEELC 3952 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3952 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case 132 of 2016 CN Mugambi, J June 30, 2026 Between Esther Nangunda Tera Plaintiff and Edward Syata Okello Defendant Ruling 1.By Notice of Withdrawal of an application dated 28.5.2026, the Advocates for the Plaintiff, M/S ASHIOYA & CO. ADVOCATES have sought to wholly withdraw the Motion dated 18.6.2025 in which the Plaintiff was seeking orders for injunctive relief. That being the position, I proceed to allow the Notice to withdraw the application dated 18.6.2025. The Plaintiff will bear the costs of the application. 2.By a Notice of Motion dated 11.11.2025, the Defendant/Applicant sought orders to the effect that the Plaintiff be restrained from stopping the Applicant from developing L.R NO SAMIA/BUDONGO/2353, an order that leave be granted to the Applicant to appeal against the judgment of the Court delivered on 29.4.2020 out of time. 3.The Applicant’s affidavit in support of the application may be summarized as follows:a)That he is the registered owner of the suit land and that the Court did not restrain him from accessing LR NO. SAMIA/BUDONGO/2353 (the suit land).b)That by its judgment dated 29.4.2020, the Court directed that the area comprising the homestead, graves and shrines on the suit land be registered in the name of the Plaintiff and the Defendant was to be compensated with commensurate land from LR NO. SAMIA/BUDONGO/2354.c)That even before the establishment of the homesteads, graves and shrines, the Plaintiff has gone ahead to demolish the Defendant’s homestead.d)That the delay in filing the appeal against the judgment dated 29.4.2020 was occasioned by the delayed survey which was to ascertain whether the Plaintiff’s husband’s grave was on the Applicant’s land.e)That the survey only took place on 6.4.2025 and the Applicant therefore seeks the leave of the Court to appeal against the aforesaid judgment out of time.f)That the Applicant will be greatly prejudiced as the Plaintiff has sold most of her land and there would therefore be no land to compensate the Applicant as adduced by the Court.g)That the Respondent/Plaintiff has never stayed on the Applicant’s land as she had always occupied LR NO SAMI/BUDONGO/2354 measuring 40½ Acres. 4.The Plaintiff has filed grounds of opposition to the application on the grounds that the application is belated and an afterthought this being a year 2018 matter and that no reasons have been given for the delay of five years in filing the application which the Plaintiff also opines amounts to a delaying tactic. Analysis And Determination 5.Prayer 2 of the Motion dated 11.11.2025 has been brought pending the hearing and final determination of the application and has therefore been overtaken by events. 6.The Applicant has also sought for an order that the Respondent be restrained from stopping the Applicant from developing his land LR NO SAMIA/BUDONGO/2353. 7.Judgment in this mater was delivered on 29.4.2020 and a decree issued in the following terms:a)“That an order has been issued that the land registrar and surveyor demarcate the area comprising the homesteads of the deceased and graves of all family members and the family shrines and give it a distinct L.R Number in the names of the Plaintiff and the Defendant.b)That should this area comprising the homestead, graves and shrines be comprised on the Defendant’s title L.R NO. SAMIA/BUDONGO/2353, then he be compensated by giving him commensurate acreage from LR. NO. SAMIA/BUDONGO/2354”. 8.The Applicant’s prayer that the Respondent should be restrained from stopping the Applicant from accessing LR NO. SAMIA/BUDONGO/2353 would therefore fly on the face of the decree which clearly suggests that the homestead, graves and shrines may form part of the Applicant’s land and in which eventuality, the Applicant is to be compensated by being given commensurate acreage from land parcel NO LR SAMIA/BUDONGO/2354. This particular prayer by the Applicant would amount to an attempt to alter the merits of the judgment and particularly considering that a final judgment has been delivered in the matter. The granting of this prayer would have the effect of re-opening the issues which were conclusively determined undermining the principle of finality in litigation and obstructing the lawful execution of the decree lawfully issued. (see the case of Njoroge & another (Suing as the administrators of the Estate of Njoroge Kamau - Deceased) v Munene & 3 others [2026] KEELC 2425 (KLR) 9.The Applicant has also sought for an order that he be granted leave to appeal against the judgment of the Court delivered on 29.4.2020. In his affidavit in support of the application and particularly in support of the prayer for leave to appeal out of time, the Applicant (where relevant) has deposed as follows:(9)“That the delay in filing the appeal against the judgment dated 29.4.2020 was occasioned by the delayed survey that was to take place to ascertain whether the grave of the Respondent’s husband was on my land or not.(10)That the survey was also to show whether the Respondent has shrines, homestead on my land which survey took place on 6.4.2025 …” 10.It is true that by a decree of this Court, the Land Registrar and the Surveyor were to demarcate the area comprising the homestead of the deceased, the graves of all family members and the family shrines. The decree did not provide for a timeframe within which this exercise was to be completed. I have read the Applicant’s draft memorandum of appeal and I am not convinced that the Applicant required the Surveyor’s and Registrar’s report to raise the grounds of appeal that he has raised in his draft memorandum of appeal. However, in view of the fact that no timeframe was provided for the demarcations of the land and further the averment by the Applicant that the survey took place on 6.4.2025, was not controverted by the Respondent, I do find merits in the Applicant’s prayer for extension of time to file his appeal out of time. Disposition 11.In view of the above findings, I do allow the application by the Applicant in the following terms.a)That leave is granted to the Applicant to appeal against the judgment of the Court delivered on 29.4.2020 out of time.b)For the avoidance of doubt, any other prayer not expressly granted is hereby dismissed. C. MUGAMBIJUDGE30TH JUNE 2026RULING DATED, SIGNED AND DELIVERED IN OPEN COURT ON THIS 30TH DAY OF JUNE 2026.BUSIA ELC NO. 132 OF 2016 – RULING Page 3 of 3