Isika & another v Nyawa (Environment and Land Appeal E007 of 2026) [2026] KEELC 5204 (KLR) (16 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KWALE** **ELC. APPEAL NO. E007 OF 2026** **JOSEPH KYALO ISIKA ….…..…… 1ST APPELLANT/APPLICANT** **ALICE KATIKU**………………..…….. **2ND APPELLANT/APPLICANT** **– VERSUS –** **SAMUEL NYAE NYAWA** **RESPONDENT** **RULING** 1. **Introduction** 2. Before this Honorable Court for its determination is the Notice of Motion application dated 20th January, 2026 filed by both *JOSEPH KYALO ISIKA and ALICE KATIKU* the 1st and 2nd Appellants/Applicants herein (Hereinafter referred to as “the Applicants”). The application is brought under the provisions of Sections 3A and 79G of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, 2010. 3. Upon service, the application was opposed by the Respondent opposed the application through filing of his Replying Affidavit sworn at Ukunda on 9th March, 2026. The Honourable Court shall dwell on it later on in this Ruling hereof. 4. Having carefully considered the pleadings, affidavits, annexures and rival submissions, this Court now proceeds to determine the Application. 5. **The case by the Applicants** 6. The Applicants sought the following orders, verbatim: - 7. ***Spent*** 8. ***Spent*** 9. ***That pending the hearing and determination of this Application, this Honourable Court be pleased to stay the Judgement delivered herein on 23rd February, 2024 in Msambweni and any other orders issued pursuant thereto, pending the hearing of the Appeal.*** 10. ***That the Honourable Court be pleased to extend time for filing and service of the Memorandum of Appeal and deem the Memorandum of Appeal lodged on 19th January, 2026 and served upon the Respondent on 19th January, 2026 as properly filed; and*** 11. ***That the costs incidental to this application abide the result of the said Appeal.*** 12. The application is premised on the grounds, testimonial facts and the averments made out under supported by the Supporting Affidavit dated on 20th January, 2026 and sworn by the 1st Applicant, JOSEPH KYALO ISIKA, together with a Further Affidavit dated and filed on 10th April, 2026 and annextures marked “JKI” annexed thereto. The Deponent averred as follows that:- 13. He was an adult male of sound mind and understanding. He was the 1st Applicant and acting with the authority of the 2nd Respondent. He was conversant with the facts of the case. Hence competent to swear this affidavit. 14. On 23rd February, 2024, a Judgement was entered in favour of the Respondent after a full hearing. 15. The Applicants were dissatisfied with the said Judgement; and that they immediately instructed their then Advocates on record, M/s. Selina Egesa & Co. Advocates, to lodge an Appeal on their behalf. 16. Their erstwhile Advocate requested for payment towards the prosecution of the intended Appeal, which payment he duly made in instalments totaling to a sum of Kenya Shillings Eighty Three Thousand (Kshs. 83,000/=) as evidenced by a filtered M-Pesa statement dated 13th January, 2026 annexed to the Supporting Affidavit and marked as annexure “JKI - 2”. 17. He visited the said Advocate’s offices, went through the Judgement with her and wrote down all the issues that he desired to be considered in the intended Appeal. 18. Upon following up on the matter telephonically, his erstwhile Advocate assured them that the Appeal had been filed but that the Judge at Kwale, Hon. Lady Justice E. Dena, had been transferred and that the parties were awaiting the posting of a new Judge to the station. 19. Upon a subsequent enquiry, the said Advocate informed him that the physical presence of the parties would not be required at the hearing of the Appeal and that, having no reason to disbelieve his own Advocate, he patiently awaited the outcome of the Appeal. 20. It was his further deposition that on 31st December, 2025, he received information that the Respondent had lost a relative and intended to conduct a burial on the suit property. He immediately called his Advocate to establish the way forward, whereupon she informed him that she was away and could not assist him, and instead advised him to seek the services of another Advocate vide a communication annexed and marked as annexure “JKI - 3”. 21. He deposed that he asked her to furnish him with the case number of the Appeal but she never responded. Upon visiting the Kwale Law Courts Registry to conduct an official search, he confirmed his worst fears – that no Appeal had ever been lodged on his behalf. 22. Upon the discovery of the default by his previous Advocate, he promptly instructed the current Advocates on record, M/s. G. A. Okumu & Co. Advocates, who lodged the Memorandum of Appeal on 19th January, 2026 together with the instant application on 20th January, 2026, being at the earliest time possible. 23. The filing of the Memorandum of Appeal out of time was not deliberate on his part but was a default visited upon him by his previous Advocates. 24. On the arguability of the intended Appeal, the 1st Applicant deposed that he was the registered proprietor of the suit property and that the trial Court directed the cancellation of his title deed, which was a very drastic order. He annexed a copy of the title deed marked as annexure “JKI-4”. 25. He deposed that one of the grounds of the Appeal was that the Honourable Magistrate lacked the jurisdiction to order the cancellation of his title document. 26. Secondly, that the sale agreement which the Honourable Magistrate relied upon to cancel his title was between third parties who were not before the Court, and that the purported Vendor lacked the capacity to sell as he did not own the suit property, it being subject to succession proceedings which were yet to be undertaken. He annexed a copy of the said Sale Agreement dated 11th May, 2012 marked as annexure “JKI -6”. 27. On the limb of stay of execution, the 1st Applicant deposed that there was a real danger that unless a stay was granted pending the hearing and determination of the Appeal, the Respondent would move with speed to enforce the Judgement of 23rd February, 2024 and thereby render the Appeal nugatory. 28. He deposed that the balance of convenience tilted in favour of the Applicants owing to the drastic effect of the decision of the trial Court, and that the Respondent would not suffer any prejudice if the application were granted. 29. In the Further Affidavit sworn on 10th April, 2026, the 1st Applicant deposed that it was clear from the Replying Affidavit that the Respondent was not opposing his application at all. 30. The matter was heard and determined in the lower Court did not take away his right of appeal; and that the law recognizes the filing of an appeal out of time where the reasons for the delay had been furnished. 31. He denied that the Respondent constructed structures on the suit property with the knowledge of the 2nd Applicant, deposing instead that the Respondent undertook the said construction during the global pandemic COVID - 19 period with the full knowledge that the 2nd Applicant lived in Machakos. 32. He maintained that the Kadhi’s Court could only conduct succession proceedings where the parties profess the Muslim faith, and reiterated that the Honourable Magistrate lacked jurisdiction to cancel his title deed, which constitutes an arguable ground of appeal. 33. He concluded that the subject matter before the Court comprises proprietary rights over a plot, which is quite weighty, and that the Court should not lock him out on account of the negligence of his previous Advocates. 34. **Responses by the Respondents** 35. As indicated hereinabove, the Respondent opposed the application through his Replying Affidavit sworn at Ukunda on 9th March, 2026 by SAMWUEL NYAE NYAWA together with annextures marked as “SNN” annexed thereto. He deposed as follows that:- 36. He had been advised by his Advocates on record, which advice he verily believed to be true, that the application as filed is fatally defective, incompetent, misconceived, bad in law, without merit and has been filed in bad faith. 37. The issues raised in the application were deadwood. They had been exhaustively raised, canvassed and a judicious finding made thereon based on the facts and the law by the trial Court. He annexed a copy of the Judgement dated 23rd February, 2024 marked as annexure “SNN - 1”. 38. The Applicants’ application and the orders sought were preposterous, uninformed and discourteous, since all along the Applicants had used the court process to present themselves as just, while their general conduct reeks of fraud, deceit, ill-intentions and all manner of mischief. 39. The Applicants had adopted a policy of ungoverned and overwhelming enthusiasm of rushing to the nearest court, not for the ends of justice, but in a forum-seeking attempt to sanitize their selfishness over almost everything and anything calculated to hoodwink the Court to bequeath them such unwarranted convenience. 40. The Applicants sought to use the court process to entreat themselves with dignity whereas they were indeed muffling grievance and masking injustice, having failed to be an epitome of integrity towards the Respondent by colluding in illegality to take away a lawfully acquired piece of property. 41. On the merits, the Respondent deposed that through his agent, he entered into a sale agreement on 11th May, 2012 in respect of the suit property with the consent and knowledge of the 2nd Applicant and her son (now deceased) at a consideration of a sum of Kenya Shillings One Hundred and Fourty Thousand (Kshs. 140,000/=); 42. The 1st Applicant purported to have entered into a sale agreement in or about the year 2017 over the same property at a higher consideration of a sum of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=), being the motivation that drove the 2nd Applicant to abandon the initial agreement without regard to the principles of the law of contract. 43. The Respondent proceeded to erect structures on the suit property with the knowledge of the 2nd Applicant, her agents, servants and her family. 44. He came to learn that there was a succession process filed at the Kadhi’s Court, being Succession Cause No. 038 of 2021, whereas the owners of the suit property all professed the Christian faith. Thus raising suspicion of fraud, bad faith, impunity and breach of trust; and that shortly after the bungled succession process, the 1st Applicant made payment in respect of the suit property and was, through the enumerated flawed processes, issued with a title deed in respect thereof, prompting the suit at the lower Court. 45. The Respondent concluded by deposing that the Applicants had not satisfied the legal criteria required to be granted the orders sought, and prayed that, in the interest of justice, the Appeal and the application be dismissed in their entirety with costs for being frivolous, vexatious and for abusing the court process with trivial and superseded issues. 46. **The Submissions by the Parties** 47. On 27th April, 2025, while in the presence of all parties, this Honourable Court directed that the said application be canvassed by way of written submissions. Subsequently, both the Applicants and the Respondent complied by filing their written submissions dated 28th May, 2026. 48. Pursuant to that, the Honourable Court reserved 16th July, 2026 as the date to deliver its Ruling accordingly. 49. **The Written Submissions by the Applicants** 50. The Learned Counsel for the Applicants, M/s. G. A. Okumu & Co. Advocates, filed their written submissions on the Applicants behalf. M/s. Okumu Advocate commenced their submissions by rehashing the background of the application and the depositions in the Supporting and Further Affidavits. Counsel submitted that the application was anchored on the provisions of Sections 3A and 79G of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010. 51. On the limb of extension of time. The Learned Counsel submitted that the Applicants had an arguable appeal with high chances of success as it raises substantive points of law, key among them being whether the Magistrate’s Court had the jurisdiction to issue the orders that it did, and that determining the Appeal by way of a technicality would prejudice and deny the Applicants their day in court and the Appeal being heard on merit. Counsel placed reliance on the decision in the case of:- ***“HCCCA No. E052 of 2021 – Michael Ntouthi Mitheu – Versus – Abraham Kivondo Musau (2021) eKLR,*** where Odunga, J. (as he then was) observed that the Courts are enjoined to give effect to the overriding objective in the exercise of their powers under the Civil Procedure Act, Cap. 21 and in the interpretation of any of its provisions pursuant to Section 1A(2) thereof. 52. The Counsel further relied on the decision by the Court of Appeal in the case of:- ***“Karny Zahrya & Another – Versus – Shalom Levi, Civil Application No. 80 of 2018 (2018) eKLR”,*** where Koome, JA. (as she then was) enumerated the considerations to be borne in mind while dealing with an application for extension of time. These included 53. the length of the delay involved; 54. the reasons for the delay. 55. the possible prejudice that each party stands to suffer; 56. the conduct of the parties; 57. the need to balance the interests of a party who had a decision in his or her favour against the interest of a party who had a constitutionally underpinned right of appeal; 58. the need to protect a party’s opportunity to fully agitate its dispute against the need to ensure the timely resolution of disputes; 59. the public interest issues implicated in the appeal; and 60. whether, prima facie, the intended appeal had chances of success or is a mere frivolity. 61. Additionally, the Counsel cited the case of:- “***Misc. Civil Application No. 19 of 2021 Malindi – Silas Kanyalu Mwatha – Versus – Josephine Kavine James”***, where the Court, while allowing an application for extension of time in respect of an appeal filed six (6) months out of time, quoted with approval the celebrated holding in the case of: “***Leo Sila Mutiso – Versus – Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 (unreported)”,*** on the four (4) settled considerations, namely: first, the length of the delay; secondly, the reason for the delay; thirdly, 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. 62. The Learned Counsel submitted that the delay in filing the Appeal was excusable. That the application for extension was made without delay after the 1st Applicant learnt that his previous Counsel had not acted on his instructions to file an appeal. That the reason for the delay had been fully explained and remained uncontroverted. That the Appeal had chances of success based on the grounds of appeal; and that the Respondent would not be prejudiced as the Appeal would be heard at the earliest time possible. 63. On the limb of stay of execution pending appeal. The Counsel submitted that the Applicants were alive to the tripartite conditions set out under the provision of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010, namely: that substantial loss may result to the Applicants unless the order was made; that the application had been made without unreasonable delay; and that the Applicants was willing to abide by any reasonable terms as to security ordered by the Court. 64. On substantial loss. The Learned Counsel averred that there was a real danger that unless a stay was granted pending the hearing and determination of the Appeal, the Respondent would move to enforce the Judgement of 23rd February, 2024 and render the Appeal nugatory, and that the enforcement of the Judgement would have a serious and drastic effect on the right to ownership of property as envisioned under Article 40 of the Constitution of Kenya, 2010, in that it would lead to an eviction process and the ownership of the suit property changing hands. Counsel relied on the case of: ***“Antoine Ndiaye – Versus – African Virtual University (2015) eKLR”,*** where the Court reiterated that substantial loss occurring to an Applicant forms the basis of the Court’s jurisdiction in exercising its discretion in granting stay of execution. 65. On the willingness to furnish security. To buttress on this issue, the Learned Counsel relied on several cases. These were the case of:- “***Arun C. Sharma – Versus – Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others (2014) eKLR”,*** where the Court explained that the purpose of the security needed under the provision of Order 42 of the Civil Procedure Rules, 2010 was to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant and not to punish the Judgment debtor. Additionally, the case of “***James Wangalwa & Another – Versus – Agnes Naliaka Cheseto, Bungoma HC Misc. Application No. 42 of 2011 (2012) eKLR”,*** on the conjunctive nature of the three conditions for the grant of stay of execution pending appeal, and submitted that the Applicants had brought the application without undue delay, adequately demonstrated the substantial loss that they stood to suffer, and expressed their readiness to furnish or offer security for the due performance of the decree in the event that they are unsuccessful in the Appeal. 66. The Applicant urged the Court to grant the prayers sought from the application. 1. **The Written Submissions by the Respondent** 2. The Learned Counsels for the Respondent, M/s. Wonanio & Kabiaro Advocates, filed their written submissions. M/s. Munyoki Advocate commenced their submissions by adopting and relying entirely on the contents of the Replying Affidavit sworn on 9th March, 2026 and the Supplementary Affidavit sworn on 8th May, 2026, in opposition to the application. The Counsel noted, for the completeness of the record, that no Record of Appeal had been served upon the Respondent up to the time of the filing of the said submissions. 3. The Counsel averred that the trial Court properly evaluated the evidence on record, applied the correct principles of the law as far as the law of contract and land ownership are concerned, and arrived at a just and judicious determination, and accordingly urged this Honourable Court to find that the purported appeal lacked merit and was fatally defective, incompetent, misconceived and bad in law, and therefore fit to be dismissed with costs to the Respondent. Counsel distilled four (4) issues for determination, namely: whether the Appellants have laid a sufficient basis for the grant of leave to file an appeal out of time; whether the delay was inordinate and inexcusable; whether the intended appeal is arguable; and whether the Respondent shall suffer prejudice if the application is allowed. 4. On the first issue. The Learned Counsel submitted that whereas this Honourable Court has the discretionary power to extend time, such discretion must be exercised judiciously and only upon sufficient cause being shown, and that an applicant must demonstrate: sufficient reasons for the delay; that the delay was not inordinate; that the intended appeal was arguable; and that no prejudice shall be occasioned to the Respondent. Counsel placed reliance on the decision by the Supreme Court of Kenya in the case of “***Nicholas Kiptoo Arap Korir Salat – Versus – Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014 (2014) eKLR”***, where the apex Court restated the guiding principles as follows:- ***“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...”*** 1. Flowing from the foregoing, the Learned Counsel argued that the 1st Appellant had failed to provide a satisfactory and credible explanation for the failure to file the appeal within the prescribed period. That the reasons advanced were vague, unsupported and insufficient to warrant the exercise of the discretion of this Honourable Court. The Learned Counsel opined that whereas the law was settled that a litigant should not suffer for the mistake of Counsel, each case must be determined on its own facts. The 1st Appellant was bound to demonstrate diligence and vigilance in following up on his matter. It was submitted that it was very clear from the Supporting Affidavit of the 1st Appellant that he took no meaningful steps to follow up on the purported appeal for a considerable period after the Judgement, and that if indeed the 1st Appellant had instructed his Advocate and paid the requisite legal fees, one would reasonably had expected him to make inquiries regarding the status of the appeal within a reasonable time. 2. The Learned Counsel submitted that the 1st Appellant’s conduct was indicative of acquiescence to the Judgement and a lack of diligence in pursuing his appellate rights. That the 1st Appellant’s alleged interest in pursuing the appeal only arose when the Respondent commenced arrangements to inter the remains of his deceased sister on the suit property; and that the said sequence of events demonstrates that the present appeal is not motivated by a genuine desire to challenge the Judgement, but was an afterthought prompted by the Respondent’s intended use of the suit property. This Honourable Court, it was urged, should not aid a litigant who slept on his rights and only sought to revive litigation when subsequent events became unfavourable to him. 3. On the second issue. The Learned Counsel contended that the 1st Appellant approached this Honourable Court after an unreasonable lapse of time and had failed to account for the lengthy period that lapsed between the delivery of the Judgement on 23rd February, 2024 and the filing of the present application in the year 2026, approximately two (2) years later, thereby leaving substantial periods of the delay completely unexplained. The Counsel termed the delay manifestly excessive and far beyond the timelines contemplated under the law for the filing of appeals, adding that the mere receipt of emails that could not be substantiated, and the existence of such correspondence and proof of payment, do not automatically entitle the 1st Appellant to an extension of time. The Counsel placed reliance on “*the locus classicus”* of “***Leo Sila Mutiso – Versus – Rose Hellen Wangari Mwangi (Supra)”*** on the four (4) settled parameters, and on the decision by the Supreme Court in the celebrated case of:- ***“County Executive of Kisumu – Versus – County Government of Kisumu & 8 Others (2017) eKLR”,*** where the Court emphasized that extension of time was a discretionary remedy and that a party seeking such relief must satisfactorily explain the delay and demonstrate diligence in pursuing his rights. 4. On the third issue. The Learned Counsel averred that the Respondent would suffer substantial prejudice and loss if the Appellants was granted leave to appeal out of time. It was submitted that since the delivery of the Judgement in the year 2024, the Respondent had legitimately proceeded on the understanding that the dispute had been conclusively determined and that no appeal had been lodged within the period prescribed by the law; that the Respondent was therefore entitled to enjoy the fruits of the Judgement and to deal with the suit property in accordance with the rights recognized by the Court. That relying on the said Judgement, the Respondent has made significant personal and family decisions concerning the suit property, including building on the suit property and interring the remains of his deceased sister thereon. 5. The Counsel submitted that burials were matters of immense emotional, cultural, social and financial significance, and that allowing the appeal at this juncture would not only disrupt those arrangements, but would also occasion considerable distress not only to the Respondent but also to the members of his family. It was further submitted that the grant of leave would effectively deprive the Respondent of the benefits of a Judgement that had remained unchallenged for approximately two (2) years; that the purpose of statutory timelines was to ensure the orderly administration of justice and to protect successful litigants from being exposed to indefinite litigation; and that to permit the 1st Appellant to revive the suit after such a prolonged period would occasion substantial prejudice to the Respondent, undermine the principle that litigation must come to an end and erode public confidence in the finality of judicial decisions. 6. On the fourth issue. The Counsel submitted that the intended appeal was devoid of merit and never raised any bona fide or arguable grounds warranting the exercise of the discretion of this Honourable Court, and that in determining an application for extension of time, the Court was entitled to consider whether the intended appeal raises arguable grounds. 7. On the question of the rightful and lawful ownership of the suit property. The Counsel relied on the provisions of Article 40 of the Constitution of Kenya, 2010 and Section 26(1) of the Land Registration Act, No. 3 of 2012, and submitted that the Respondent, through his agent and sister, one Mariamu Umazi, purchased the suit property vide a sale agreement dated 11th May, 2012 at a consideration of a sum of Kenya Shillings One Fourty Thousand (Kshs. 140,000/=), which agreement was produced as Plaintiff Exhibit Number 1 at the trial, was never challenged by the Appellants and therefore remains valid, and fully satisfied the requirements of the provision of Section 3(3) of the Law of Contract Act, Cap. 23. The Learned Counsel submitted that, to the contrary, a major scrutiny could properly be directed at the 1st Appellant who, knowing very well that the owners of the suit property professed the Christian faith, contributed to and by extension financed the succession process before the Kadhi’s Court, being Succession Cause No. E038 of 2021, in order to speed up the process of the illegal acquisition of the suit property, and that it is therein that the mischief, bad faith, fraud and ill-will lie. Relying on the provision of Section 5 of the Kadhis’ Courts Act, Cap. 11, Counsel submitted that the jurisdiction of a Kadhi’s Court was limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; that where a court proceeds with a case despite a lack of jurisdiction, any Judgments or orders it issues were null and void; and that the Kadhi’s Court accordingly acted ultra vires by presiding over matters concerning parties who never professed the Muslim faith, and its vesting order ought to be set aside. Counsel invited this Honourable Court to scrutinize Paragraph 7 of the Further Affidavit dated 10th April, 2026 sworn by the 1st Appellant and to treat the admission therein with the contempt that it deserves. 8. The Learned Counsel further submitted that the 1st Appellant could not rely on a title deed whose root was questionable and, at the same time, contend that the trial Court lacked the jurisdiction to interrogate the validity of the said title deed and to cancel it, and that since the 1st Appellant’s entire appeal was anchored on that ground, it was dead on arrival and could not sustain the appeal. Relying on the provision of Section 80 of the Land Registration Act, No. 3 of 2012 on the rectification of the register by order of the Court, the Counsel cited the decisions in the cases of:- “***Amos Tirop Matui & Another – Versus – Festus K. Kiprono & 2 Others (2018) eKLR and David Mukangula Saizi – Versus – Noah Namungu Bechenjo (2023) KEELC 270 (KLR)”,*** for the settled proposition that, following the amendments to the Environment and Land Court Act, 2011 and the Magistrates’ Courts Act, the Magistrates’ Courts have wide and extensive jurisdiction to hear and determine land disputes and to make any appropriate orders, including the cancellation of title deeds and the rectification of the register in compliance with the provision of Section 80 of the Land Registration Act, so long as the value of the subject matter fell within their pecuniary jurisdiction. 9. In conclusion, the Learned Counsel held that the Learned Trial Magistrate duly took into consideration the fact that the Respondent purchased the suit property in the year 2012, several years before the 1st Appellant’s purported purchase in the year 2017. It was correctly found that the Respondent’s agreement had priority over that of the 1st Appellant; that the 1st Appellant had not demonstrated that the trial Court misapprehended the evidence, applied the wrong legal principles, ignored material evidence or arrived at a conclusion that was plainly erroneous; and that this Honourable Court should uphold the principle of finality in litigation, protect the Respondent’s accrued rights under the Judgement and dismiss the application with costs to the Respondent. 10. **The issues for determination** 11. The Honourable Court has keenly considered the Notice of Motion application dated 20th January, 2026, the grounds on its face, the Supporting and Further Affidavits and the annextures thereto, the Replying and Supplementary Affidavits by the Respondent, the rival written submissions filed by the Learned Counsels for the parties, the cited authorities and the applicable law. 12. For the Court to arrive at an informed, fair, just and reasonable decision, it has framed the following three (3) salient issues for its determination: - 13. ***Whether the Applicants have satisfied the legal threshold for the enlargement of time within which to file and serve the Memorandum of Appeal out of time under the provisions of Section 79G of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010, and whether the Memorandum of Appeal lodged on 19th January, 2026 should be deemed as duly filed and served;*** 14. ***Whether the Applicants have met the conditions for the grant of an order of stay of execution of the Judgement and Decree delivered on 23rd February, 2024 pending the hearing and determination of the Appeal under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010; and*** 15. ***Who should bear the costs of the application?*** ***ISSUE No. a) Whether the Applicants have satisfied the legal threshold for the enlargement of time within which to file and serve the Memorandum of Appeal out of time.*** 1. Prior to embarking on the analysis under this sub – heading, there will be need to extrapolate on some brief background. As already indicated, the application was filed under Certificate of Urgency contemporaneously with a Memorandum of Appeal challenging the Judgment of the Principal Magistrate's Court delivered on 23rd February, 2024 in Msambweni MCELC No. E008 of 2021. 2. The impugned Judgment arose from a dispute relating to ownership of land parcel Kwale/Lunga Lunga/Mahuruni/357, in which the trial court entered judgment in favour of the Respondent, Samuel Nyae Nyawa. Being dissatisfied with that judgment, the Applicants seek leave of this Court to lodge an appeal out of time and consequential orders staying execution pending the hearing and determination of the intended appeal. 3. Now back to the analysis. The starting point in the determination of this issue is the substantive provision of the law donating to this Court the jurisdiction to enlarge time. The provision of Section 79G of the Civil Procedure Act, Cap. 21 provides as follows:- **“Every appeal from a sub - ordinate 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.”** 1. The said provision is buttressed by the provision of Order 50 Rule 6 of the Civil Procedure Rules, 2010, which stipulates thus:- **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.”** 1. From a plain and purposive reading of the above provisions, it is discernible that the power to admit an appeal out of time is discretionary. Nonetheless, like all judicial discretion, it must be exercised judiciously, upon reason and sound legal principle, and not arbitrarily, capriciously, on whim or sentiment. The *locus classicus* on the guiding principles remains the decision of the Court of Appeal in the case of ***“Leo Sila Mutiso (Supra)”***, where the Court held as follows:- ***“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.”*** 1. The said principles were amplified by the Court of Appeal in the case of: ***“Karny Zahrya & Another – Versus – Shalom Levi, Civil Application No. 80 of 2018 (2018) eKLR, cited by the Applicants, and in the case of Fakir Mohammed – Versus – Joseph Mugambi & 2 Others (2005) eKLR”,*** where the Court of Appeal observed that the exercise of the discretion is unfettered and that there is no limit to the number of factors the Court may consider so long as they are relevant, including the effect of the delay on public administration, the importance of compliance with time limits, the resources of the parties and whether the matter raises issues of public importance. 2. On his part, the Respondent placed heavy reliance on the restatement of the guiding principles by the Supreme Court of Kenya in the case of:- ***“Nicholas Kiptoo Arap Korir Salat – Versus – Independent Electoral and Boundaries Commission & 7 Others (Supra)”,*** reproduced hereinabove, which restatement this Court fully embraces, it being the authoritative pronouncement of the apex Court, and further on the case of:- ***“County Executive of Kisumu – Versus – County Government of Kisumu & 8 Others (Supra)”,*** where the Supreme Court emphasized that extension of time is a discretionary remedy, that the whole period of the delay should be declared and explained satisfactorily to the Court, and that a party seeking such relief must demonstrate diligence in pursuing his rights. This Court discerns no discordance whatsoever between the principles espoused in the authorities cited by the Applicants on the one hand and those cited by the Respondent on the other; they are, in truth, two sides of the same coin, all converging on the settled parameters. Guided by the said binding jurisprudence, this Court now proceeds to interrogate the four (4) settled parameters seriatim. ***i). The length of the delay*** 1. The Judgement sought to be appealed against was delivered on 23rd February, 2024. In terms of the provision of Section 79G of the Civil Procedure Act, the Applicants ought to have lodged their Memorandum of Appeal on or before 24th March, 2024. The Memorandum of Appeal was, however, only lodged on 19th January, 2026. By simple arithmetic, the delay is one of approximately one (1) year and ten (10) months, or close to two (2) years. By any standard, and this Court states so without any equivocation whatsoever, this is an inordinate and substantial delay. Indeed, the Applicants themselves, in the Supporting Affidavit and the written submissions, variously computed the delay as one (1) year and five (5) months and twenty (20) months respectively. Whichever computation is adopted, the delay remains inordinate. The law is, however, settled that the length of the delay per se is not determinative. Even a single day’s delay must be explained, and conversely, a long delay which is satisfactorily and plausibly explained may be excused. The critical enquiry, therefore, shifts to the reason for the delay. ***Ii). The reason for the delay*** 1. The Applicants’ explanation is that immediately upon the delivery of the impugned Judgement, the 1st Applicant instructed his then Advocates, M/s. Selina Egesa & Co. Advocates, to lodge an appeal; that he paid the requisite fees in instalments totaling a sum of Kenya Shillings Eighty Three Thousand (Kshs. 83,000/=) as evidenced by the filtered M-Pesa statement annexed as annexure “JKI - 2”; that the said Advocate repeatedly assured him that the appeal had been filed and was merely awaiting the posting of a new Judge to the Kwale station following the transfer of Hon. Lady Justice E. Dena; that he was further assured that the physical presence of the parties would not be required at the hearing; and that it was not until 31st December, 2025, upon receiving information of an intended burial on the suit property, that his frantic follow-up unearthed the bitter truth from an official search at the Kwale Law Courts Registry – that no appeal had ever been lodged. 2. Significantly, this Court has perused the annextures to the Supporting Affidavit. The M-Pesa statement, annexure “JKI - 2”, discloses four (4) transactions between 1st February, 2024 and 5th November, 2024, all being customer transfers to “Selina Egesa”, totaling a sum of Kenya Shillings Eighty Three Thousand (Kshs. 83,000/=). The very first transaction of a sum of Kenya Shillings Three Thousand (Kshs. 3,000/=) is dated 1st February, 2024, barely a week before the delivery of the Judgement, while a payment of a sum of Kenya Shillings Twenty Thousand (Kshs. 20,000/=) was made on 5th March, 2024, within the appeal window. The WhatsApp extract, annexure as “JKI - 3”, corroborates the deposition that the 1st Applicant was following up with the said Advocate and forwarding her the payment confirmations. These contemporaneous documents lend considerable credence to the Applicants’ narrative. Notably, and this is of profound significance, the Respondent, in both his lengthy Replying Affidavit and his Supplementary Affidavit, did not controvert, rebut or even remotely address this explanation by way of any evidence. The depositions on the advocate’s default therefore stand uncontroverted on the record. The riposte by the Learned Counsels for the Respondent in the written submissions – that the reasons advanced are vague, unsupported and insufficient, and that the mere receipt of unsubstantiated correspondence and proof of payment does not automatically entitle the 1st Applicant to an extension of time – being contentions advanced from the bar, cannot displace sworn depositions fortified by contemporaneous documentary exhibits, for it is trite law that submissions are not evidence, as the Court of Appeal reminded them in the case of: ***“Daniel Toroitich Arap Moi – Versus – Mwangi Stephen Muriithi & Another (2014) eKLR”.*** 3. The question that then arises is whether the mistake, default or negligence of an Advocate constitutes **“good and sufficient cause”** within the meaning of the provision of Section 79G of the Civil Procedure Act, Cap. 21. The jurisprudence on this vexed question is legion. In the celebrated case of:- ***“Belinda Murai & 9 Others – Versus – Amos Wainaina (1979) eKLR”,*** Madan, JA. (as he then was) rendered himself in the following famous terms:- ***“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.”*** 1. Similarly, in the case of:- ***“Philip Chemwolo & Another – Versus – Augustine Kubende (1986) KLR 495”, Apaloo, JA.*** (as he then was) observed that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case heard on merit, and that the broad equity approach is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court, as the handmaiden of justice, exists for the purpose of deciding the rights of parties and not for the purpose of imposing discipline. 2. This Court is, at the same time, alive to the counterweight in the jurisprudence to the effect that a litigant is not entitled to sit back and abdicate the prosecution of his cause entirely to his Advocate, and that the mistake of Counsel is not a magic wand or an open sesame that automatically unlocks the exercise of the Court’s discretion. In the case of:- ***“Savings & Loan Limited – Versus – Susan Wanjiru Muritu, Nairobi HCC Milimani No. 397 of 2002”,*** the Court held that a litigant has a duty to constantly follow up on his case with his Advocates. In the instant case, however, the 1st Applicant has demonstrated, with documentary support, that he did precisely that – he paid the fees, physically attended the Advocate’s chambers, itemized his grounds, made telephonic follow-ups and was met, on each occasion, with plausible-sounding assurances, including the true and verifiable fact of the transfer of the resident Judge from the Kwale station, which assurances an ordinary lay litigant would have no reason to doubt. He cannot, in the considered view of this Court, be branded indolent. The submission by the Learned Counsels for the Respondent that the 1st Applicant acquiesced to the Judgement, slept on his rights and that the appeal is a mere afterthought prompted by the Respondent’s arrangements to inter the remains of his deceased sister on the suit property does not, with utmost respect, commend itself to this Court. The intended interment was not the motive of the appeal; it was merely the catalytic event that flushed out the deception of the erstwhile Advocate, for it was the frantic enquiry occasioned thereby that culminated in the official search at the Kwale Law Courts Registry and the discovery that no appeal had ever been lodged. The contemporaneous payment trail, commencing on 1st February, 2024, long before any burial arrangements could conceivably have been in contemplation, is wholly inconsistent with the theory of acquiescence and, instead, evinces a litigant who, from the very outset, harboured and pursued a genuine intention to appeal. The moment the veil of deception fell away on 31st December, 2025, he moved with commendable alacrity – the Memorandum of Appeal and the instant application were lodged on 19th and 20th January, 2026 respectively, a period of a mere three (3) weeks, part of which coincided with the festive season and the Court’s Christmas vacation. 3. In the premises, this Court finds and holds that whereas the delay of approximately one (1) year and ten (10) months is inordinate, it has been reasonably, plausibly and satisfactorily explained, and that the fault lies squarely at the doorstep of the Applicants’ erstwhile Advocates and not the Applicants themselves. It would be the very height of injustice to visit the sins of the Advocate upon an innocent, diligent and fee-paying litigant. ***iii). The chances of the appeal succeeding – the arguability of the intended appeal*** 1. The third consideration is whether, prima facie, the intended appeal is arguable or a mere frivolity. At this interlocutory stage, this Court must tread with considerable circumspection. It is not the province of the Court, at this juncture, to determine with finality the merits or otherwise of the intended appeal, that being the preserve of the appellate bench when the appeal is ultimately placed before it. An arguable appeal, it must be emphasized, is not necessarily one that must succeed, but merely one that raises at least a single bona fide point deserving of the consideration of the Court. This was the position taken by the Court of Appeal in the case of:- ***“Athuman Nusura Juma – Versus – Afwa Mohamed Ramadhan, CA No. 227 of 2015 (2016) eKLR***, where the Court was categorical that the consideration of whether the intended appeal has chances of success is invariably prefixed with the word “possibly”. 2. This Court has perused the Memorandum of Appeal dated 16th January, 2026. It raises eleven (11) grounds, key among them being: that the Learned Magistrate erred in holding that the 1st Applicant’s title document for Kwale/Lunga Lunga/Mahuruni/357 was obtained through fraud without strict proof as required under Section 80 of the Land Registration Act; that the Learned Magistrate erred in holding that there was a valid sale agreement between the Respondent and a third party without Letters of Administration in respect of the estate of the then registered proprietor; that the Learned Magistrate erred in ordering the cancellation of the 1st Applicant’s title document when she allegedly lacked the jurisdiction to do so; and that the Learned Magistrate erred in ordering specific performance when there was no valid enforceable contract between the Respondent and the 2nd Applicant. Without expressing any opinion whatsoever on their ultimate merit, this Court is satisfied that the said grounds, particularly those touching on the jurisdiction of the trial Court to cancel a registered title, the standard of proof of fraud in land matters and the enforceability of a sale agreement executed by a non-proprietor pending succession, are neither idle nor frivolous. They raise weighty and substantive points of law that are, prima facie, deserving of ventilation before the appellate Court. Jurisdiction, in particular, is everything, as was famously pronounced in the celebrated case of “***Owners of the Motor Vessel “Lillian S” – Versus – Caltex Oil (Kenya) Limited (1989) KLR 1”***, and a complaint that a court acted without jurisdiction can never be termed frivolous. 3. This Court has not lost sight of the forceful submissions by the Learned Counsels for the Respondent that the intended appeal is dead on arrival, anchored as they were on the provisions of Article 40 of the Constitution of Kenya, 2010, Sections 26(1) and 80 of the Land Registration Act and Section 5 of the Kadhis’ Courts Act, and fortified by the decisions in the cases of:- ***“Amos Tirop Matui & Another – Versus – Festus K. Kiprono & 2 Others (supra) and David Mukangula Saizi – Versus – Noah Namungu Bechenjo (Supra)***”, to the effect that the Magistrates’ Courts have wide and extensive jurisdiction to cancel title deeds and rectify the register so long as the value of the subject matter falls within their pecuniary jurisdiction. Those are, without a doubt, weighty ripostes, and they may very well carry the day at the hearing of the appeal. They are, however, in the estimation of this Court, arguments that go to the ultimate merits and demerits of the appeal, which merits this Court must studiously refrain from determining at this interlocutory stage, lest it embarrasses the appellate bench that will ultimately be seized of the appeal. Indeed, the very fact that both sides have marshalled competing constitutional, statutory and judicial authority on the questions of the jurisdiction of the trial Court to cancel a registered title, the root and sanctity of the 1st Applicant’s title and the validity of the succession proceedings before the Kadhi’s Court is itself eloquent testimony that the intended appeal raises bona fide triable points deserving of full ventilation before the appellate Court, rather than idle frivolities. ***iv. The degree of prejudice to the Respondent*** 1. The fourth and final consideration is the degree of prejudice, if any, that the Respondent stands to suffer if the extension is granted. Undoubtedly, the Respondent holds a Judgement in his favour and is, prima facie, entitled to enjoy the fruits thereof. A successful litigant should not lightly be kept away from the fruits of his judgement. Nevertheless, the prejudice contemplated by the law is that which is incapable of being compensated by an award of costs or ameliorated by suitable conditions. This Court has anxiously considered the prejudice articulated by the Learned Counsels for the Respondent in the written submissions, to wit: that the Respondent has, for approximately two (2) years, legitimately proceeded on the understanding that the dispute stood conclusively determined; that, relying on the Judgement, he has made significant personal and family decisions concerning the suit property, including building thereon and interring the remains of his deceased sister thereon; and that burials are matters of immense emotional, cultural, social and financial significance. This Court does not, even for a moment, trivialize or take lightly those weighty considerations. However, the apprehended prejudice is, in large measure, capable of being arrested by the very disposition of this Court: the developments already undertaken on the suit property constitute a state of affairs that the status quo orders hereinafter made will preserve rather than disturb, no eviction or demolition being decreed at this interlocutory stage; the sanctity of the interment, if the same has indeed been undertaken, is expressly safeguarded by the preservatory orders; and the residual inconvenience of the revived litigation is amply compensable by an award of costs and cushioned by the security and the stringent timelines hereinafter ordered. On the flip side of the coin, the Applicants stand to suffer the drastic and irreversible consequence of the cancellation of a registered title and the permanent loss of their proprietary claim over the suit property without the benefit of a first appellate re-evaluation, a right which is constitutionally underpinned under Articles 48, 50 (1) and 164 (3) of the Constitution of Kenya, 2010. The scales of justice, when weighed against each other, tilt in favour of affording the Applicants their day in court, with the Respondent’s inconvenience being adequately assuaged by an award of costs and the imposition of stringent timelines for the prosecution of the Appeal. 2. Additionally, this Court is enjoined by the provisions of Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya, 2010 to administer substantive justice without undue regard to procedural technicalities and to give effect to the overriding objective of the just, expeditious, proportionate and affordable resolution of disputes. As was aptly observed by Odunga, J. (as he then was) in the case of:- ***“Michael Ntouthi Mitheu – Versus – Abraham Kivondo Musau (Supra)”***, cited by the Applicants, the Courts are now enjoined to give effect to the overriding objective in the exercise of their powers under the Civil Procedure Act and in the interpretation of any of its provisions. 3. The long and short of the foregoing analysis is that all the four (4) parameters, considered conjunctively and in the round, resolve in favour of the Applicants. Consequently, this Court finds and holds that the Applicants have demonstrated good and sufficient cause within the meaning of the provision of Section 79G of the Civil Procedure Act, Cap. 21 for not filing the Appeal within time. The answer to the first framed issue is therefore that the Memorandum of Appeal lodged on 19th January, 2026 and served upon the Respondent shall be deemed as duly filed and served upon the payment of the requisite court fees. ***ISSUE No. b) Whether the Applicants have met the conditions for the grant of an order of stay of execution pending the hearing and determination of the Appeal.*** 1. Having admitted the Appeal was out of time, the natural consequence is to consider whether the Judgement and Decree of the trial Court should be stayed pending its hearing and determination. The applicable law is the provision of Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010, which provides in the material part as follows:- **“(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...** **(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.”** 1. The conditions under the said provision are conjunctive and not disjunctive, such that the absence of one affects the exercise of the discretion of the Court. This position was reinforced by the Court of Appeal in the case of:- ***“Vishram Ravji Halai – Versus – Thornton & Turpin Civil Application No. Nai. 15 of 1990 (1990) KLR 365”,*** where it was held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 Rule 6 of the Civil Procedure Rules is fettered by three conditions, namely, the establishment of a sufficient cause, the satisfaction of substantial loss and the furnishing of security, and further that the application must be made without unreasonable delay. 2. ***Whether substantial loss may result to the Applicants*** 3. Substantial loss has been described as the cornerstone of the jurisdiction to grant stay of execution. In the case of:- ***“Kenya Shell Limited – Versus – Benjamin Karuga Kibiru & Another (1986) KLR 410”, Platt, Ag. JA.*** (as he then was) expressed himself thus:- ***“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.”*** 1. Similarly, in the case of:- ***“James Wangalwa & Another – Versus – Agnes Naliaka Cheseto (Supra),*** Gikonyo, J. held that the applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal, that being what substantial loss would entail. 2. In the instant case, the decree in question is not a money decree. It is a decree that commands the Land Registrar, Kwale to revoke and cancel the 1st Applicant’s registered title over the suit property, compels the 2nd Applicant to execute a transfer of the suit property to the Respondent, and permanently restrains the Applicants from dealing with the suit property. The execution of such a decree would, in one fell swoop, extinguish the very proprietary substratum of the intended Appeal. Once the title is cancelled and the suit property transferred and registered in the name of the Respondent, third-party interests may readily be created thereon, and the Court further takes cognizance of the rival positions of the parties on the interment on the suit property – the 1st Applicant deposing that a burial was intended to be conducted thereon, while the Respondent, in his written submissions, intimated that he has since interred the remains of his deceased sister thereon – which rival positions only serve to underscore how readily and irreversibly the character of the suit land may be altered pendente lite in a manner that no order of the appellate Court could adequately undo. In the considered view of this Court, this is the paradigm of substantial loss. If the stay is declined and the decree executed, the success of the Appeal, were it to succeed, would be reduced to a mere pyrrhic and academic victory, and the Applicants would be rendered, in the words of Gikonyo, J. in the case of:- ***“Antoine Ndiaye – Versus – African Virtual University (Supra)”***, mere ***“pious explorers in the judicial process”***. The first condition is accordingly satisfied. 3. ***Whether the application was made without unreasonable delay*** 4. The instant application was filed on 20th January, 2026, a mere three (3) weeks after the 1st Applicant’s discovery, on 31st December, 2025, that no appeal had been lodged by his erstwhile Advocates, and simultaneously with the lodging of the Memorandum of Appeal itself. For the reasons this Court has extensively rendered under the first framed issue, the intervening period between the delivery of the Judgement and the said discovery has been satisfactorily explained and attributed to the default of the Applicants’ previous Advocates. Further, and critically, there is no evidence on record that execution of the decree has already been carried out or completed. This Court accordingly finds that the application was brought timeously and without unreasonable delay upon the emergence of the threat of execution. The second condition is equally satisfied. 5. ***Security for the due performance of the decree*** 6. On the third condition, the Applicants, at Paragraph 29 of their written submissions, expressed their unreserved willingness to abide by any order as to security that this Court may direct, in line with the provision of Order 42 Rule 6(2)(b) of the Civil Procedure Rules, 2010. The essence of such security was aptly enunciated in the case of:- ***“Arun C. Sharma – Versus – Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others (Supra)”,*** where the Court stated that the purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant and is not to punish the Judgment Debtor. As was further held by the Court of Appeal in the case of:- ***“Nduhiu Gitahi & Another – Versus – Anna Wambui Warugongo (1988) 2 KAR 100***”, so long as the opposite party can be adequately protected, it is right and proper that security should be given in a way which is least disadvantageous to the party giving it, and the form of the security is a matter within the discretion of the Court. 7. Bearing in mind that the decree herein is not a money decree, the most efficacious security in the circumstances of this case is twofold: first, the preservation of the status quo obtaining on the suit property so that neither party steals a match on the other pendente lite; and secondly, a reasonable monetary deposit to cushion the Respondent against the costs and the attendant inconvenience of the intended Appeal should the same ultimately fail. Doing the best that it can on the material before it, this Court assesses a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs. 150,000/=) as reasonable security for the due performance of the decree, to be deposited in a joint interest-earning account in the names of the Advocates for both parties, or in Court, within forty five (45) days of this Ruling. 8. In arriving at the above disposition, this Court has remained alive to the timeless admonition of Kuloba, J. in the case of:- ***“Machira t/a Machira & Co. Advocates – Versus – East African Standard (No. 2) (2002) KLR 63”,*** that to be obsessed with the protection of an Appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement. It is precisely for that reason that this Court has, in the exercise of its discretion, elected to grant the stay conditionally, upon stringent terms as to security and timelines, so as to hold the ring even-handedly between the parties, ensuring on the one hand that the Appeal, which this Court has found to be arguable, is not rendered nugatory, and on the other hand that the Respondent’s enjoyment of the fruits of his Judgement is postponed for only the shortest practicable duration and upon adequate protection. ***ISSUE No. c) Who should bear the costs of the application?*** 1. It is trite law that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of legal action and proceedings in any litigation. 2. The provision of Section 27(1) of the Civil Procedure Act, Cap. 21 holds that costs follow the event. By the event it means the result and outcome of the legal action. 3. Although the Applicants have substantially succeeded in their application, the Court cannot lose sight of the fact that the application was itself an indulgence sought from the Court based on the principles of Justice, Equity and Conscience, necessitated by a default emanating from the Applicants’ own side of the bar, and that the Respondent was perfectly within his rights to oppose it. In the circumstances, the fairest order that commends itself to this Court is that the costs of the application be awarded to the Respondent in any event. 4. **Conclusion and disposition** 5. Ultimately, having conducted an elaborate analysis of the framed issues hereinabove, and in the exercise of the unfettered discretion of this Honourable Court. Thus, based on this, it has proceeded to make the following specific orders:- 6. **THAT the Notice of Motion application dated 20th January, 2026 by the Applicants be and is hereby found to be meritorious and is hereby allowed on the following terms and conditions.** 7. **THAT the Applicants be and are hereby granted leave to file and serve their Memorandum of Appeal against the Judgement and Decree of the Principal Magistrate’s Court at Msambweni (Hon. Sandra Ogot, PM) delivered on 23rd February, 2024 in MCELC Case No. E008 of 2021 out of time, and the time is hereby enlarged accordingly;** 8. **THAT the Memorandum of Appeal dated 16th January, 2026 and lodged on 19th January, 2026, together with the service thereof effected upon the Respondent, be and is hereby deemed as duly and properly filed and served within time;** 9. **THAT pending the hearing and determination of the Appeal herein, there be and is hereby issued an order of stay of execution of the Judgement and Decree delivered on 23rd February, 2024 in MCELC Case No. E008 of 2021 and all consequential orders arising therefrom, on condition that the Applicants shall deposit a sum of Kenya Shillings One Hundred and Fifty Thousand only (Kshs. 150,000/=) as security for the due performance of the decree, in a joint interest-earning account in the names of the Advocates for the parties herein, or in Court, WITHIN FORTY FIVE (45) DAYS from the date of this Ruling, in default whereof the order of stay of execution shall automatically lapse and stand discharged without further reference to this Court;** 10. **THAT in the intervening period, the status quo currently obtaining on the suit property, being Title Number Kwale/Lunga Lunga/Mahuruni/357, shall be maintained by both parties, and neither party shall alienate, charge, transfer, construct upon, conduct any burial or further interment on, or in any other manner whatsoever change the character of the suit property pending the hearing and determination of the Appeal;** 11. **THAT for expediency, the Applicants shall file and serve well bound and paginated Record of Appeal WITHIN THE SIXTY (60) DAYS from the date of this Ruling, in default whereof the Appeal shall stand dismissed for want of prosecution under Order 42 Rules 20 ( 1 ) & ( 2 ) and 35 (1) & ( 2 ) of the Civil Procedure Rules, 2010 for want of prosecution and the stay orders granted herein shall automatically lapse;** 12. **THAT the matter be and is hereby fixed for mention on 14th October, 2026 for purposes of confirming compliance with the above conditions and for further directions on the disposal of the Appeal under the provision of Section 79B of the Civil Procedure Act, cap. 21 and Order 42 Rules, 11, 13 & 16 of the Civil Procedure Rules, 2010.** 13. **THAT the costs of the application are awarded to the Respondent in any event to be paid by the 1st and 2nd Applicants jointly and severally.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS …16TH….. DAY OF ………JULY…………2026.** ………………………… **HON. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:-** 1. Mr. Daniel Disii – The Court Assistant. 2. M/s. Okumu Advocates for the 1st & 2nd Appellants/Applicants. 3. Mr. Munyoki Advocates for the Respondent.