https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4507

Kimotho v Maneno (Environment and Land Miscellaneous Application E001 of 2026) [2026] KEELC 4507 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4507 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Miscellaneous Application E001 of 2026 CK Yano, J July 16, 2026 Between Francis Kimotho Applicant and Faith Chepkwemoi Maneno Respondent Ruling 1.This Ruling disposes of the Applicant’s Notice of Motion dated 15th January, 2026 seeking the following orders:-1.Spent.2.That this Honourable Court be pleased to enlarge time to allow the Applicant file an Appeal out of time against the judgment delivered on 24th September, 2024 vide Eldoret Chief Magistrate Land Case No. E116 of 2021.3.That there be a stay of execution of the decree and/or eviction against the Applicant pending the hearing and determination of the intended Appeal.4.That costs of this Application be provided for. 2.The application is premised on the grounds on the face of the Motion and the Supporting Affidavit of Francis Kimotho, the applicant herein, sworn on 15th January, 2026. The Applicant’s case is that he was sued in in Eldoret Land Case No, E116 of 2021, by the Respondent herein, in whose favour judgment was delivered on 24.09.2024. The Applicant claims that he was never informed of the outcome of the case, and was thus not accorded a proper forum, due to lack of service, to lodge an appeal within time. That, however, being dissatisfied with the judgment, the Applicant now wishes to appeal against it, but the permitted time to do so has since lapsed. 3.The Applicant claims that his intended Appeal has high chances of success and raises weighty issues that require determination by this Honourable Court. The Applicant avers that the property in contention is registered to a person other than the Respondent herein. He has averred that he filed the present application promptly. The Applicant deponed that the failure to file the intended Appeal on time was not deliberate and/or intended to circumvent the due process of the law. He adds that it is only fair, just and expedient that time be enlarged to allow him file his appeal out of time. The Applicant avers that no prejudice will be occasioned upon the Respondent if the application is allowed. 4.The Respondent opposed the Motion through her Replying Affidavit sworn on 4th February, 2026. According to the Respondent, she purchased a portion of the parcel of land known as Kapseret/Kapseret Block 1(Yamumbi)/1611, together with the developments standing thereon, from Samson Kamau Ng’ang’a through her brother Fredrick Chebos Maneno. Upon subdivision, the portion of land transferred to her was Kapseret/Kapseret Block 1(Yamumbi)/ 1635 measuring 0.154Ha (the suit property). The Respondent claims that the Applicant trespassed into her land and took possession of her house without any justification denying her the opportunity to use the land she purchased. 5.The Respondent avers that she thus filed Eldoret Chief Magistrates ELC Case No. 116 of 2021 seeking to have him removed/evicted from the land, a permanent injunction against him, damages for trespass and costs of the suit, to which the Applicant herein filed a Defence. That after a full hearing, the court delivered judgment on 24.09.2024. Further, that the Applicant was duly served with the decree thereto on 15.11.2025 as evidenced by an Affidavit of Service sworn on 15.11.2025 by Kenneth O. Oduor. Thereafter, the Respondent avers that she commenced the eviction process pursuant to an eviction order issued by the court, thus the decree has been fulfilled. 6.The Respondent avers that the Applicant’s re-entry into the land upon eviction is not only contemptuous but criminal in nature. The Respondent further averred that the court has discretion to enlarge time to appeal, however, the Applicant has dwelt on an unreasonable issue of delay, without giving any justifiable grounds for doing so. She has alleged that she stands to suffer great prejudice since she incurred great expense in evicting the Applicant in order to enjoy the fruits of her judgment. That her efforts will be curtailed if litigation is re-opened. She asserted that the intended appeal has no chances of success. Submissions: 7.The matter was mentioned for directions on 19.02.2026. The Applicant was granted leave to file and serve a supplementary affidavit. The court further directed that the application be canvassed by way of written submissions. The Applicant’s Submissions; 8.The Applicant filed submissions dated 30th March, 2026. Counsel for the Applicant submits that this Court has jurisdiction under Section 79G of the Civil Procedure Act to enlarge time for filing an appeal. Counsel submits that the delay was occasioned by the delivery of judgment on 24.09.2024 in the absence of counsel and without notice to the parties, thereby preventing the Applicant from filing an appeal within the prescribed period. Counsel argued that the delay was neither deliberate nor inordinate, but resulted from circumstances beyond the Applicant's control, and that the application was filed promptly upon becoming aware of the judgment. 9.Reliance is placed on Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others (2014) eKLR and Leo Sila Mutiso vs Rose Hellen Wangari Mwangi (1999) eKLR for the principles governing extension of time. Counsel maintains that the Applicant has provided a satisfactory and excusable explanation. Counsel urged the Court, pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution, to grant the application in the interests of substantive justice. 10.Counsel submits that the intended appeal is arguable as it raises substantial and triable issues worth consideration by this court. Counsel urged that an arguable appeal need not ultimately succeed but need only disclose at least one bona fide issue, as held in Stanley Kang’ethe Kinyanjui vs Tony Ketter & Others [2013] eKLR. He contends that the trial magistrate failed to properly evaluate the evidence, particularly the Applicant’s defence, and instead relied heavily on the Respondent’s case without adequately scrutinizing its authenticity and probative value. Counsel relied on Selle vs Associated Motor Boat Co. Ltd (1968) EA 123. 11.Counsel further argues that the court awarded KShs. 200,000/- as damages for trespass without sufficient evidentiary basis. On this argument, Counsel cited Kenya Hotel Properties Ltd vs Willesden Investments Ltd (2009) eKLR. Counsel argued that the trial court erred in granting orders relating to the suit property without addressing the issue of ownership. Counsel argues that evidence showed the property was registered in the name of a third party, thereby raising fundamental questions concerning ownership, locus standi, and the legality of the Respondent’s claim. Relying on and Wreck Motors Enterprises vs Commissioner of Lands & Others (1997) eKLR, Counsel urged the Court to find that the intended appeal raises serious and triable issues deserving determination on the merits. 12.Counsel further submits that the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules have been satisfied. Counsel contends that unless the orders sought are granted, the Applicant, who is currently in occupation of the suit property, faces imminent eviction. That as a result, the Applicant will suffer substantial and irreparable loss, rendering the intended appeal nugatory, and relied on Kenya Shell Ltd vs Kibiru (1986) KLR 410. Counsel explained that the delay resulted from lack of notice of the delivery of judgment and that the present application was lodged promptly upon becoming aware of the judgment. Counsel urged the Court to find merit in the prayer for stay of execution, and to preserve the suit property pending hearing and determination of the intended appeal. 13.Counsel submits that the Respondent will suffer no prejudice incapable of being compensated by way of costs if the orders sought are granted. That on the other hand, the Applicant faces imminent eviction from the suit property, resulting in irreparable loss and disruption that cannot be compensated by damages, and the intended appeal will be rendered nugatory. That, therefore, the balance of convenience favours preserving the status quo pending the determination of the appeal. Counsel relied on Butt v Rent Restriction Tribunal (1982) KLR 417, arguing that the Court should exercise its discretion so as to preserves the subject matter of the dispute and safeguard the right to appeal. Counsel further expressed the Applicant’s willingness to abide by any order the Court may impose as to security. Accordingly, Counsel urged the Court to grant the orders sought. The Respondent’s Submissions; 14.The Respondent’s submissions in opposition to the Application are dated 12th May, 2026. In the said submissions, Counsel for the Respondent emphasised that extension of time is an equitable and discretionary remedy available only where sufficient cause for delay has been demonstrated. Counsel submitted that the Applicant has failed to satisfy the conditions for extension of time, as set out in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others (2014) eKLR. Counsel contended that the Applicant has neither satisfactorily explained the inordinate delay between the delivery of judgment on 24.09.2024 and the filing of the present application nor advanced reasons capable of justifying exercise of the Court’s discretion. Counsel relied on Bi-Mach Engineers Ltd vs James Kahoro Mwangi (2011) eKLR and Utalii Transport Company Ltd & 3 Others vs NIC Bank Ltd & Another (2014) eKLR. 15.Counsel further argued that litigation must come to an end, and a successful litigant should not be deprived of the fruits of judgment. Counsel claims that, consistent with Mwangi vs Kenya Airways Ltd (2003) eKLR, the Court’s discretion must be exercised judiciously with due regard to the parties’ conduct and the principle of finality in litigation. Accordingly, Counsel maintained that the Applicant has demonstrated indolence and lack of diligence and is therefore undeserving of the equitable intervention sought. 16.Counsel submitted that the intended appeal is devoid of merit and raises no arguable issues. Counsel was of the opinion that the evidence before the trial court conclusively established that the Respondent lawfully purchased the suit property. That she obtained the requisite Land Control Board consent, lawfully subdivided and transferred the land, and was duly issued with a valid title deed. Counsel argued that, per Sections 24, 25 and 26 of the Land Registration Act, the Respondent acquired indefeasible ownership rights which have not been impeached on grounds of fraud, misrepresentation or illegality. Counsel cited Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others (2015) eKLR and Elijah Makeri Nyangw’ra vs Stephen Mungai Njuguna & Another (2013) eKLR. Counsel urges that the trial court made its judgment on merit, thus the intended appeal is aimed at delaying her enjoyment of the fruits of the judgment. 17.Counsel submitted that the Applicant has failed to demonstrate any sufficient cause, substantial loss, or arguable issue capable of justifying the grant of stay or overturning the trial court's findings. Counsel relied on Kenya Shell Limited vs Benjamin Karuga Kibiru & Another (1986) eKLR. Counsel submitted that allowing the application will occasion substantial prejudice, as execution of the decree has already been completed. Counsel argues that the Applicant had been evicted from the suit property pursuant to lawful court orders, and the Respondent has incurred considerable costs in the execution process. 18.He contends that the Respondent should not be deprived of her right to enjoy the fruits of her judgment without just cause. Counsel argued that the Application has been overtaken by events, since execution has already been completed and vacant possession restored to the lawful proprietor. Counsel thereby asked that the application be dismissed with costs. Counsel relied on Butt vs Rent Restriction Tribunal (1982) KLR 417, Machira T/A Machira & Co. Advocates vs East African Standard (No. 2) (2002) KLR 63 and Samvir Trustee Limited vs Guardian Bank Limited (2007) eKLR. Analysis and Determination: 19.Having considered the application, the respective affidavits, and the Parties’ submissions herein, the following issues arise for determination:-i.Whether the Applicant has met the threshold for enlargement of time to file an appeal;ii.Whether the court should issue an order of stay of execution pending the intended appeal; andiii.Who shall bear the costs of this application? Whether the Applicant has met the threshold for enlargement of time to file an appeal; 20.The applicable law while considering an application for enlargement of time within which to file an appeal is Section 79G of the Civil Procedure Act, Cap 21, Laws of Kenya, which provides as follows:-79G.Time for filing appeals from subordinate courtsEvery appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 21.That aside, courts are further guided by Section 95 of the Civil Procedure Act, which provides as follows:-95.Enlargement of timeWhere any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. 22.Similarly, Order 50 Rule 6 of the Civil Procedure Rules provides that:-6.Power to enlarge time [Order 50, rule 6]Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise. 23.It must be noted however, that as held by the Supreme Court as aptly stated in Nicholas Kiptoo Arap Korir Salat vs IEBC and 7 Others (2015) eKLR, extension of time is not a right of a party, but a discretionary remedy that is only available to a deserving party. The Applicant is therefore obliged to place before the court some plausible material explaining the reason for failure to comply with the rules and for any delay occasioned. This is because the expeditious resolution of disputes is a constitutional value and principle, which would be undermined by unexplained or inexcusable dilatoriness. 24.Some of the factors that aid Courts in exercising the discretion on whether or not to enlarge time to file an appeal were suggested by the Court of Appeal in Thuita Mwangi vs Kenya Airways Ltd (2003) eKLR. They include the following:-i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the Respondent if the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved. 25.On the reason for the delay, the Supreme Court in Nicholas Kiptoo arap Korir Salat vs IEBC & 7 Others (supra) stated:-“It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.” 26.The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable. 27.The Applicant herein claims that he was unaware that judgment had been delivered in the suit. According to the Applicant, the trial magistrate delivered the judgment without notice, thus he was unaware the matter had been determined. I have looked at the Respondent’s Affidavit, and she has not denied the allegation that the Applicant had no notice of the delivery of the judgment. 28.Order 21 Rule 1 on judgments and decrees, provides that:-1.Judgment, when pronounced [Order 21, rule 1]In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates. 29.The Applicant was therefore entitled to notice that judgment in his suit was being delivered. I have looked at the judgment annexed by the Respondent and note that none of the parties herein is indicated as being present at the date of delivery of the judgment. Unfortunately, this court has not seen the proceedings of the trial court so as to be able to determine what occurred at the date of the judgment. 30.It is therefore impossible to tell whether they both had notice, or what led to the judgment being delivered in the absence of the parties herein, and more specifically, the Applicant. From the Affidavit of Service annexed by the Respondent, One Kenneth Oduor deponed that he served the Applicant on 15th November, 2024. By the time of service, the period of 30 days within which to lodge the appeal had already lapsed. 31.As regards the period of delay, the judgment of the trial court was delivered on 24.09.2024, while the present application was filed on 16th January, 2026. There is a period of one year four months from the date of delivery of the judgment and the filing of the application for enlargement of time. However, going by the Applicant’s claim that he was unaware of the delivery of the judgment, which claim is proved just by looking at the copy of the judgment provided, I do find in the circumstances, that the delay is properly explained and is not inordinate. 32.On the arguability of the Appeal, in Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) KECA 701 (KLR), the Court of Appeal held that an arguable appeal does not necessarily mean one which will succeed. The Applicant annexed to his motion a draft Memorandum of Appeal containing a total of seven grounds. I have perused the Draft Memorandum of Appeal and find that the appeal is arguable as it raises tangible issues for determination, among them that his evidence was not considered. 33.On the prejudice to be suffered, this court cannot in good conscience state that the Respondent will suffer no prejudice. She obtained a valid judgment from the court entitling her to ownership and usage of the land. Therefore, enlarging the time for the appeal will no doubt affect that said right. However, the Applicant does have a constitutionally guaranteed right to be heard on his case, which right encompasses his corresponding right to pursue his appeal. 34.It is the Court’s duty to balance the rights of the parties herein to ensure that any prejudice suffered is minimal. I find that there is greater risk in denying the Applicant his right to pursue the Appeal. For the above reasons, I do find that the Applicant has satisfied this court that he is entitled to the order enlarging time to allow him file his appeal out of time. Whether the court should issue an order of stay of execution pending the intended appeal; 35.The Applicant has also sought in the present application an order of stay of execution of the judgment pending hearing and determination of his Appeal. The legal frame work governing matters stay of execution is Order 42 Rule 6 of the Civil Procedure Rules, which provides that:-6.Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 subrule (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 may ultimately be binding on him has been given by the applicant. 36.The purpose of an order of stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of a Party, who is exercising their undoubted right of appeal are safeguarded, and the appeal, if successful, is not rendered nugatory. See RWW vs EKW (2019) eKLR. 37.It goes without saying that the decision to grant an order of stay of execution pending appeal is a discretionary one. For an Applicant to convince a court that they are deserving of an order of stay, they must meet the conditions laid down at Order 42 Rule 6(2) of the Civil Procedure Rules, which are as follows:-i.The applicant must satisfy that she stands to suffer substantial loss if the stay is not granted,ii.That the application has been filed without undue delay, andiii.That the applicant is willing to offer such security as may be ordered by the court. 38.However, I have noted that concerns raised by the Respondent herein concerning the conduct by the Applicant after delivery of the judgment. There is no doubt that in its judgment, the trial court ordered the Applicant to either vacate the suit land or face eviction. It would appear that he did not heed the directive to vacate the suit land, and was therefore evicted, as evidenced by the photographs annexed to the Respondent’s Replying Affidavit. 39.It is unclear therefore, how the Applicant regained entry into the suit property seeing as the Respondent went to great lengths to enforce the judgment of the trial court by evicting him. It is also not lost to me that the trial court issued an order of permanent injunction in its judgment, restraining the Defendant or anyone acting through or under him from entering the land. Compliance with this order would have meant that upon eviction, the Applicant was to stay away from the suit property. 40.The Applicant’s re-entry into the suit property after eviction, and in total disregard of the orders of the trial court, is indeed contemptuous. Moreover, the Applicant has not rebutted the averments made by the Respondent as regards the eviction and his re-entry into the land. In any event, even if this court were to consider the Applicants prayer for an order of stay, he would fail at the requirement of substantial loss. 41.While courts have held that substantial loss is the cornerstone of any application for stay of execution pending appeal, such substantial loss cannot be one of the Applicant’s own making or designs. In returning and re-entering the suit land after eviction, the Applicant essentially put himself in harm’s way in that he now faces a second eviction therefrom. The Applicant must therefore assume any such harm and/or substantial loss suffered by himself from denial of the order of stay of execution. 42.For these reasons, I find that a party who is blatantly defying the orders of the trial court is not deserving of the exercise of discretion by this court in their favour as regards the order of stay of execution. In the circumstances, I find that the Applicant’s prayer for stay of execution pending Appeal is not merited Who shall bear the costs of this application? 43.On the issue of costs, ideally Courts are guided by Section 27(1) of the Civil Procedure Act, which grants them the discretionary power to determine who should bear the costs of a civil suit and the extent to which those costs are payable. The said provision establishes the general principle that costs follow the event, meaning that the successful party is ordinarily awarded costs. 44.The same provision also allow court to depart from this rule where there are good reasons to do so. The Applicant herein having partially succeeded in his application would ordinarily be entitled to the costs of the Application. However, the proviso to Order 50 Rule 6 states that the costs of any application to extend time is to be borne by the party making such application, unless the court orders otherwise. Guided by the said Order 50 Rule 6, I hereby decline to make an award of costs in favour of the Applicant herein. Instead, I do order that the Respondent shall have the costs of this Application, which shall be borne by the Applicant. Orders:- 45.Accordingly, the Applicant’s Notice of Motion dated 16th January, 2026 partially succeeds as follows:-a.Time be and is hereby granted to enlarge time to allow the Applicant file an Appeal out of time against the judgment delivered on 24th September, 2024 vide Eldoret Chief Magistrate Land Case No. E116 of 2021.b.The intended appeal to be filed within 7 days from the date hereof.c.The Respondent shall have the costs of this Application to be borne by the Applicant. 46.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 16TH DAY OF JULY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the presence of:-Mr. Sirengo holding brief for Mr. Kiboi for the Respondent.Mr. Omboto for the Applicant.Court Assistant - Laban.