https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3171

Otieno v Nduta & another (Environment and Land Miscellaneous Case E060 of 2025) [2026] KEELC 3171 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3171 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Miscellaneous Case E060 of 2025 AY Koross, J May 26, 2026 Between George Okoth Otieno Applicant and Julia Nduta 1st Respondent Charles Mwirigi 2nd Respondent Ruling 1.Before this court for determination is a notice of motion dated 24 June 2025, filed by the applicant, expressed to have been moved under Section 1A, 3A, 79G and 95 of the Civil Procedure Act, Orders 22 Rule 22, 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the Law. He prays for the following orders from this court: -a.Spent.b.Spent.c.That this Honourable Court be pleased to grant an order of stay of execution of the Judgment delivered by Hon. E. Kimaiyo Suter, Principal Magistrate, Mavoko Law Courts, on 8 May 2025, pending the hearing and determination of the intended appeal.d.That this honourable court be pleased to enlarge the time within which to file the intended appeal.e.That the honourable court be pleased to grant the applicant leave to file the intended appeal out of time.f.That costs be provided for. 2.The motion is supported by several grounds presented on its face and by the supporting affidavit of the applicant, sworn on the instant date. Concisely, he states that on 8th May 2025, Honourable E. Kimaiyo Suter, Principal Magistrate, delivered a Judgment issuing orders restraining the applicant from accessing or remaining on parcel of land plot no. 500/273 Waswa Phase IV (claimed by the respondents as Mavoko Town Block 3/6249 and 3/6250) (“the suit land”). 3.Dissatisfaction with the decision prompted an intended appeal, which raises serious triable issues for consideration by the court. Unless orders of stay pending appeal are granted, the intended appeal risks being rendered nugatory. The respondents are unlikely to suffer prejudice if the orders sought are granted. The application has been made without unreasonable delay as the judgment of the lower court was delivered on 8th May 2025, and the intended appeal should have been filed by 9th June 2025, a date that has since passed. 4.That on 16th June 2025, upon enquiry about the progress of the appeal from previous advocates on record, it was revealed that filing had not occurred due to the unavailability of certified proceedings from the trial court. At this point, the current advocate's opinion was sought, and instructions were given to proceed with filing the intended appeal to avoid further delay. 5.The respondents strenuously challenge the motion. In brief, the 1st respondent’s replying affidavit, sworn on 7 October 2025, contends that the applicant has not offered valid reasons for the delay in filing the appeal and has failed to act within the reasonable time allowed to seek stay orders. The 1st respondent argues that equity favours the vigilant rather than the indolent. If the court allows the late appeal, the 1st respondent requests that the applicant deposit Kshs 1,500,000 as security for costs and mesne profits, and that neither party occupy the property during the appeal. 6.Furthermore, she contends that the application lacks merit and should be dismissed with costs, as the applicant has failed to show sufficient cause for the court to exercise its discretion in his favour. 7.Regarding the 2nd respondent, his replying affidavit, deposed on 19 December 2025, contains several assertions, notably that the applicant failed to file an appeal within the required time and has not provided a valid reason for the delay. His claim that typed proceedings are required is inaccurate, as such documents are not required to file a memorandum of appeal. Additionally, the applicant failed to disclose ongoing contempt proceedings in the trial court, which is seen as a deliberate omission and an abuse of court process. 8.Moreover, the application is made in bad faith, intended only to delay or obstruct justice. That allowing the application would unfairly prejudice the 2nd respondent, who already has a favourable judgment, yet the applicant continues to occupy the suit land without justification. Lastly, the applicant has not demonstrated any likelihood of success on appeal or any significant loss if the stay is not granted, making his request for a stay of execution unwarranted. 9.In a brief rejoinder, the applicant swore a supplementary affidavit sworn on 5 February 2026, in which he asserts that the application herein was filed before the lower court application for contempt was filed. 10.Subsequently, and as directed by the court, the motion is argued through written submissions. The law firm of Ms. Kinaro & Associates Advocates, for the applicant, filed its submission dated 5 February 2026, whereas Ms. Kinyanjui, Kirimi & Co. Advocates, for the 2nd respondent, filed its submission dated 12 February 2026. Accordingly, the court has thoroughly examined the motion, its grounds, the affidavits, and the arguments contained in the submissions, which are supported by relevant statutory laws and case precedents, and it suffices that the sole issues for determination are whether an extension of time should be granted to the applicant and whether a stay of execution should be granted. We proceed consecutively. a. Whether an extension of time should be granted to the applicant 11.In addressing this issue, it is imperative for this court to emphasise the pertinent legal provisions concerning the extension of time to lodge an appeal. Concerning this matter, as indicated on the face of the motion, Section 79G of the Civil Procedure Act stipulates that any party involved in proceedings before the lower court who is dissatisfied with its decision may, within 30 days of the decision, lodge an appeal to the superior court authorised to hear such appeals. 12.Nonetheless, in cases involving delays, parties may, as the applicant has done, make an application to the court under Section 95 of the Civil Procedure Act, requesting the court to exercise its sound discretion based on valid and sufficient grounds. The court may, at its discretion, subsequently extend the prescribed period, even if the initial period has expired. Section 79G of the Civil Procedure Act states;“Every 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.”While Section 95 of the Civil Procedure Act provides as follows: -“Where 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.” 13.In considering such applications, the fundamental non-exhaustive principles governing the exercise of judicious discretion for the extension of time were established by the Supreme Court of Kenya in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), which decision has been relied upon by the 2nd appellant. As articulated in paragraph 85 of its decision, the apex court delineated the following criteria: -“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;Whether there will be any prejudice suffered by the respondents if the extension is granted;Whether the application has been brought without undue delay; andWhether in certain cases, like election petitions, public interest should be a consideration for extending time.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;Whether there will be any prejudice suffered by the respondents if the extension is granted;Whether the application has been brought without undue delay; andWhether in certain cases, like election petitions, public interest should be a consideration for extending time.” 14.Additionally, this court must consider its primary objective of ensuring a fair, expeditious, proportionate, and accessible dispute resolution, as delineated in Section 3 of the Environment and Land Court Act. 15.The question arises whether the applicant has provided sufficient grounds to justify an extension of the time to file an appeal. In this instance, the contested decision was issued on 8 May 2025, and the instant application was filed on 25 June 2026, a period of about one and a half months, which, given the circumstances, is not excessive. Hence, this court finds that it was filed without unreasonable delay. 16.In agreement with the 2nd respondent, any appeal from the lower court to this court shall be instituted by filing a memorandum of appeal, and there is no legal requirement that typed proceedings be obtained first or that the record of appeal be filed simultaneously with the memorandum of appeal. 17.Nevertheless, the applicant argues that his former counsel operated under the mistaken belief that some of these documents were necessary to file the appeal. When he became concerned about the delay, he sought the assistance of his current counsel, who correctly understood the law and subsequently filed the necessary motion. The applicant's argument is deemed acceptable by this court, as the error made by his counsel in misinterpreting the law cannot be attributed to him as a lay person. Furthermore, he did not remain inactive; instead, he took immediate, proactive measures to rectify his counsel’s mistake by engaging his current counsel, who promptly filed the present motion. Accordingly, this court finds that the applicant is deserving of an extension of time to lodge his appeal. b. Whether a stay of execution should be granted 18 .Concerning the relevant law, and as posited on the face of the motion, Order 42 Rule 6 of the Civil Procedure Rules empowers this court to entertain the instant motion. The long-standing principles contained in this provision are that an applicant must demonstrate that the motion is brought without undue delay, satisfy the court that substantial loss may result to him unless a stay of execution is granted, and provide security as ordered by the court for the proper performance of any decree or order that may ultimately be binding upon them. 19.Furthermore, since this is the court to which an appeal has been lodged, the other principles it must consider are that the applicant has demonstrated that the appeal or intended appeal is arguable; and that, unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory. When entertaining motions such as this, this court exercises judicious discretion and is guided by the aforementioned tests. When determining whether the applicant has met the legal threshold, this court will sequentially examine the tests and, in doing so, consider the prevailing jurisprudence that aligns with them. 20.The first test concerns delay. In this case, it is clear that the applicant filed his motion promptly as earlier found. 21.Regarding the second and third tests of substantial loss and the appeal being rendered nugatory, the frequently referenced Ugandan decision of Tropical Commodities Suppliers Ltd and Others v. International Credit Bank Limited (in liquidation) (2004) E.A. LR 331, in paragraph 16 and subsequent sections, delineates the criteria that constitute substantial loss, stating:“…Hence, the question needs to be asked as to what in law constitutes “substantial loss”. In my view, substantial loss need not be determined by a mathematical formula whose computation yields any particular amount. Indeed, Jowitt’s Dictionary of English Law (2’ Edn.) Vol. 2, p.1713, carefully defines the analogous concept of “substantial damages” as: “damages which represent actual loss, whether great or small, as opposed to nominal damaqes. “[emphasis added] 22.In similar vein, Black’s Law Dictionary (6th Edn.) at p.1428, defines the word “substantial” as, inter alia:“of real worth and importance, not seeming or imaginary or illusive - Seglem v Skelly Oil Co., 145 Kan. 216 P.2d 553, 554. Something worthwhile as distinguished from something without value or merely nominal — In Re Krause’s Estate, 173 Wash. 1, 21 P. 2d 268.”The conclusion is inescapable. Substantial loss does not represent any particular amount or size. It cannot be quantified by any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value, as distinguished from a loss without value or a loss that is merely nominal.” 21.In the Court of Appeal decision of Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR), which both counsel have relied upon, Platt Ag JA stated as follows on the principle of loss: -“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 corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore without this evidence it is difficult to see why the respondents should be kept out of their money.” 22.Further, on appeal being rendered nugatory, the decision of Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR) weighed in on this test and stated as follows:-“x)Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 23.The applicant asserts that he would incur significant losses if the judgment were executed, allegedly asserting his possession of the disputed land since 1996. Nevertheless, he has not submitted any documents to substantiate his possession, such as photographs or an expert report. Additionally, despite claiming possession, he stated that the land remains undeveloped. In essence, the land is unoccupied, with no structures erected by either party. He informs the court that this status (being undeveloped) was maintained during the proceedings before the lower court. Essentially, neither party resides on the suit land. 24.The significance of this is that any actions undertaken by the respondents, who are the registered owners of the suit land, pending the intended appeal, are reversible and can be remedied by an award of damages. Consequently, this court determines that the threshold for demonstrating substantial loss and rendering the appeal nugatory has not been met. As the applicant has failed to meet some of the criteria necessary for a stay of execution, this court concludes that the relief of a stay of execution is without merit, rendering it unnecessary to consider the questions of security or the arguability of the intended appeal. 25.In light of the above reasons and findings, this court grants the following orders:a.Leave to file an appeal out of time is hereby granted, and the appeal shall be filed and served within 14 days from the date of this ruling.b.Failure to comply with the order (a) above shall lead to the automatic vacation of the order.c.Costs of the motion shall abide by the outcome of the appeal.d.The file is hereby marked as closed.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 26TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGE26.05.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Tuwei for Mr. Kirimi for 2nd respondent.Mr. Muriithi for Mr. Kinaro for applicant.