Chiema v Amwayi & 3 others (Environment and Land Miscellaneous Case E016 of 2026) [2026] KEELC 4848 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC MISC NO. E016 OF 2026** **IBRAHIM OSORE CHIEMA………….………………………. APPLICANT** **AND** **NAHASHON OMONDI AMWAYI…….……………… 1ST RESPONDENT** **THE LAND REGISTRAR, UKWALA…………………2ND RESPONDENT** **JOHN SHIKOBA………………………………………...3RD RESPONDENT** **CHARLES OMONDI …………………………………4TH RESPONDENT** **RULING** 1. What is before this Court for determination is the Applicant’s Notice of Motion dated 30th April 2026, which seeks the following orders: 2. SPENT 3. THAT the Applicant be granted leave to lodge an appeal out of time against the Judgment and Decree of the Honourable Court in Ukwala MCELC Case No. E039 of 2022 delivered on 25th November 2025 by Honourable Edward Tsimonjero (SRM). 4. THAT the Memorandum of Appeal annexed to the application be deemed as duly filed upon payment of the requisite court fees. 5. THAT in the alternative to prayer (3), the Applicant be granted leave to file a Memorandum of Appeal out of time. 6. THAT the costs of this application do abide the outcome of the intended appeal. 2. The 1st Respondents opposed the application vide a Replying Affidavit sworn on 15th May 2026 deponed that the Judgment was delivered in the presence of both parties’ advocates on 25th November, 2025, making the statutory deadline to appeal 25th December, 2025. 3. That the Application filed on 30th April 2026 represents an unexplained delay of over four months post expiry and those internal transitions of legal representation are purely administrative arrangements that do not suspend statutory timelines. 4. The 1st Respondent avers the applicant failed to attach any documentary evidence such as correspondence or formal requests for consent to prove the alleged difficulties in changing advocate. 5. The 1st Respondent avers those Certified copies of proceedings are not a prerequisite under the law for filing a Memorandum of Appeal to preserve appellate timelines. 6. The Applicant’s claim that he was "unaware" the appeal had not been filed is an explicit admission of personal negligence and lack of diligence, which cannot constitute "sufficient cause" for enlargement of time. 7. That the Applicant’s plea of ignorance regarding the non-filing of the appeal constitutes negligence and indolence which cannot form the basis for exercising judicial discretion. 8. That the 1st Respondent has already taken steps toward executing and enjoying the decree and reopening the dispute would occasion him substantial prejudice, uncertainty and unnecessary legal expenses. 9. The intended appeal is devoid of merit and merely calculated to delay execution of a lawful court decree. 10. The 1st Respondent is requesting the court to dismiss the application with costs awarded to the Respondents. **SUBMISSIONS** 11. The application was dispensed by way of written submissions. **Applicant Submissions** 12. In support of the Application dated 30th April, 2026 the Applicant filed written submissions dated 14th July, 2026 filed through the firm of Messrs. Ben Adoul Nyanga & Co. Advocates. 13. On the legal principles governing applications for enlargement of time, the Applicant relied on Section 79G of the Civil Procedure Act and Section 16A (2) of the Environment and Land Court Act, emphasizing that this Court holds broad discretionary jurisdiction to admit an appeal out of time upon showing good and sufficient cause. In support of this proposition, Counsel cited the decisions in ***Safaricom*** ***Investment Co-operative Ltd v. Saina [2026] KEELC 4020 (KLR); Mugo & Others v. Wanjiru & Another (1970) EA 482; Thuita Mwangi v. Kenya Airways Ltd [2003] eKLR (referencing Leo Sila Mutiso v. Rose Hellen Wangari Mwangi); and Nicholas Kiptoo Korir Arap Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR***. 14. Regarding the length of delay, the applicant submitted that judgment in the primary suit Ukwala MCELC Case No. E039 of 2022 was delivered on 25th November, 2025 meaning the statutory 30-day period to appeal lapsed on 25th December, 2025. The instant application having been lodged on 30th April, 2026 approximately four (4) months after the statutory window, he argued that such delay is not inordinate. To fortify this position, the Applicant cited ***Okumu v. Wawala & Another [2023] KEELC 16471 (KLR)***, where a delay of six (6) months was held not to be inordinate. 15. The Applicant avers that he encountered significant procedural hurdles post-judgment, specifically in obtaining the necessary consent to change advocates and securing certified copies of the lower court proceedings. 16. On whether the intended appeal is arguable, the Applicant submitted that an applicant need not show that the appeal will definitely succeed, but merely that there is at least one triable issue. Citing ***Kenya Tea Growers Association & Another v. Kenya Planters & Agricultural Workers Union (Civil Application Nairobi No. 72 of 2001)***, Counsel pointed to the draft Memorandum of Appeal containing five (5) grounds of appeal, principally faulting the trial Magistrate for misapprehending evidence on the parties’ shared ancestry from the patriarch Maloba Odongo (Deceased) and misdirecting himself on material facts. 17. The Applicant avers that the Respondents stand to suffer no prejudice if the application is allowed, as the Applicant ought to be granted an opportunity to ventilate his appeal on the merits. **The 1st, 3rd and 4th Respondents’ Submissions** 18. In support of the Application the Respondent filed written submissions dated 13th July, 2026 drawn by the firm of Messrs. Wanjiru Kimotho Associates Advocates. 19. They submitted that the Applicant has failed to satisfy the legal threshold for enlargement of time under Section 79G of the Civil Procedure Act and Section 16A (2) of the Environment and Land Court Act. 20. On the length of delay, they submitted that a delay of over four (4) months following the delivery of judgment on 25th November, 2025 is inordinate, unreasonable and unsubstantiated. It was contended that the statutory 30-day timeline is intended to bring finality to litigation and the Applicant slept on his rights without plausible justification. 21. On the reasons for delay, Counsel argued that difficulty in obtaining administrative consents does not constitute good and sufficient cause to excuse the delay. The Respondents asserted that the Applicant was well aware of the judgment date and failed to exercise due diligence to lodge the appeal in time. 22. Lastly, Counsel submitted that reopening the matter after the delivery of a lawful judgment would cause grave prejudice to the Respondents, who are entitled to enjoy the fruits of their judgment without perpetual threat of litigation. The Court was therefore urged to dismiss the application with costs to the Respondents. **ANALYSIS AND DETERMINATION** 23. I have carefully considered the application, affidavit in support thereto and replying affidavit in opposition as well as the submissions on record. The following issues commend determination: 1. Whether the Applicant has made out a case for the granting of the orders sought. 2. Who bears the Costs of the application? 24. The power of this Court to extend time for filing an appeal is discretionary, as provided under **Section 79G of the Civil Procedure Act** and **Section 16A (2) of the Environment and Land Court Act**. 25. The governing principles for the exercise of this judicial discretion were succinctly set out in the Leo ***Sila Mutiso v. Rose Hellen Wangari Mwangi*** ***(Civil Application No. Nai 255 of 1997)***, where the Court observed: ***"It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first; the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted…"*** 26. These principles were further affirmed by the Supreme Court in ***Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014]*** which underscored that extension of time is not a right granted as a matter of course but a discretionary remedy aimed at securing justice. ***“The Supreme Court’s discretion to extend time for filing an appeal was guided by key principles. Extension was not a right but an equitable remedy granted to deserving parties. The applicant must lay a satisfactory basis for the request. The decision was case-specific, requiring a reasonable explanation for the delay, absence of undue delay, and consideration of potential prejudice to the respondent. In some cases, such as election petitions, public interest may be a factor. Ultimately, the court balanced fairness, diligence, and the interests of justice in determining whether to grant an extension.”*** 27. The court will be guided accordingly. 28. Judgment in the subordinate court was delivered on 25th November, 2025. The statutory 30-day window within which to lodge an appeal expired on 25th December, 2025. The instant application was lodged on 30th April, 2026 representing a delay of approximately four (4) months. 29. In evaluating the circumstances, this Court finds that a delay of four (4) months is not inordinate so as to shut the Applicant out of the court room. See **Sundowner Lodge Limited vs Kenya Tourism Development Corporation [2019] eKLR**where the Supreme Court of Kenya observed that a delay of 4 months is not inordinate. 30. While it is true as a matter of procedure that certified copies of proceedings are not a strict prerequisite for filing a Memorandum of Appeal a party preserves their appellate right simply by filing the Memorandum of Appeal within time as certified proceedings and judgments are exclusively necessary for compiling the Record of Appeal, the Applicant's mistake in awaiting proceedings before taking steps is an error of counsel that should not be visited upon the litigant. Courts must strive to balance procedural technicalities against substantive justice. 31. A review of the Memorandum of Appeal shows that the intended appeal raises a substantive, multi-faceted triable issue regarding the trial court’s evaluation of facts and law. Specifically, the Applicant contends that the trial Magistrate failed to properly evaluate evidence on historical land boundaries and long-standing physical occupation, an issue this Court is legally bound to re-evaluate afresh on a first appeal. 32. The above ties directly into the complex legal question of whether a customary trust existed over the suit land based on a shared patriarchal lineage from the common ancestor, Maloba Odongo (Deceased)and whether the trial court erred by favoring formal documentary title over established customary rights of occupation. 33. Taken together, these points are neither frivolous nor designed to waste the Court's time. At this stage, the Court is not deciding who will ultimately win the appeal; it only confirms that the grounds raise arguable issues that deserve a full hearing on their merits. Moreover an arguable appeal is one that need not necessarily succeed. 34. About the prejudice to be suffered by the Respondent the respondent deponed that grant of leave will result into delay in him enjoying the fruit of his judgment. In my view this is compensable by way of costs. 35. This court takes cognizance of the fact that the right to appeal is a fundamental right recognized under the Constitution under the right to a fair trial. 36. The Applicant’s Notice of Motion dated **30th April, 2026**, is hereby allowed on the following terms: 1. Leave is hereby granted to the Applicant to lodge and serve his Memorandum of Appeal out of time. 2. The Applicant shall file and serve the Memorandum of Appeal within **fourteen (14) days** from the date of this Ruling. 3. That failure to comply with order No. ii above leave shall automatically terminate on the 15th day. 4. The costs of this Application are awarded to the 1st 3rd and 4th respondent Respondent being the party who participated in the Appeal. It is so ordered **Dated at Siaya this 28th Day of July 2026** **HON. JUSTICE A. E. DENA** **JUDGE** **28/07/2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:** Mr. Akira holding brief for Nyaga for Applicant Mr. Gikonyo holding brief for M/S Materi Court assistant: Abiud Wekesa