https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3643

**REPUBLIC OF KENYA** **IN THE** **ENVIRONMENT AND LAND COURT AT NYAMIRA** **ELCLC No. 95 OF 2021** **JAMES ONYANGO ORIANGO ….……..…………….….……….... PLAINTIFF** **VERSUS** **COUNTY GOVERNMENT OF NYAMIRA ........................... 1ST DEFENDANT** **ZACHARIAH ODIDA KISIMBA .......................................... 2ND DEFENDANT** **PATRICK MONARI ........................................................... 3RD DEFENDANT** **HEDSON NYALI ................................................................ 4TH DEFENDANT** **ATTORNEY GENERAL ...................................................... 5TH DEFENDANT** **RULING** 1. By Notice of Motion dated 21st April 2026, the First Defendant is seeking the following orders: 2. *The instant application be certified urgent and be heard on priority basis;* 3. *This Honourable Court be pleased to grant the Honourable County Attorney - Nyamira, leave to come on record in representation of the 1st Defendant in place of Nyachiro Nyagaka & Company Advocates;* 4. *The Honourable Court be pleased to extend the time for lodging a notice of appeal against the judgment of this Honourable Court delivered on 22.03.2023;* 5. *The Applicant be granted leave to lodge an appeal from the judgment of this Honourable Court delivered on 22.03.2023 within such timelines as the Honourable Court may deem fit;* 6. *Costs of this Application abide by the outcome of the intended Appeal*. 7. The application is based on the grounds listed on its face and is supported by an affidavit sworn by Erastus M. Orina, the County Attorney - Nyamira County. He deposed that judgment was delivered in this matter on 22nd March 2023 and that the firm of Nyachiro Nyagaka & Company had been on record for the First Defendant, hence the prayer for leave for the County Attorney to come on record instead of the said firm. That the First Defendant was aggrieved by the judgment and promptly instructed the said firm on 23rd March 2023 to institute appellate proceedings. 8. Mr Orina further deposed that after several follow up through tele-correspondence, e-mails and letters with the said firm, it came to the attention of his office that the said firm erroneously lodged a notice of appeal dated 23rd March 2023 in the High Court instead of this Court. He added that the firm had never lodged substantive appellate proceedings within the statutory timelines of 60 days set under Rule 84 of the Court of Appeal Rules. 9. He went on to depose that there was need for leave to properly lodge a fresh notice of appeal since the earlier one was deemed as withdrawn in view of the express provisions of **Rule 85** of the **Court of Appeal Rules** and since the 14 days statutory period for lodging a notice of appeal against the judgment had long lapsed. That the First Defendant was keen to appeal against the judgment since its delivery and that the delay was caused by its erstwhile advocates. He added that the First Defendant should not be punished for mistakes and indolence of its erstwhile advocates. He also deposed that certified copies of typed proceedings had been collected and that the record of appeal was ready for lodging. 10. Although evidence of service of the application upon them was availed, the Plaintiff and the Second to Fourth Defendants neither responded to it nor attended Court at its hearing. Learned Litigation Counsel appearing for the Fifth Defendant informed the Court that the Fifth Defendant was not opposed to the orders sought being granted. 11. Counsel for the First Defendant relied on written submissions dated 11th May 2026 and urged the Court to allow the application since it was unopposed. 12. I have carefully considered the application, the supporting affidavit and the submissions. The only issue for determination is whether the orders sought should issue. 13. The First Defendant is seeking leave for the County Attorney – Nyamira to come on record to represent it in place of Nyachiro Nyagaka & Company Advocates. The prayer for leave in that regard is not opposed. I see no valid reason not to grant it. 14. The First Defendant is also seeking extension of time to enable it file Notice of Appeal against the judgment delivered by this Court (differently constituted) on 22nd March 2023. In view of the provisions of **Rule 77 (2)** of the **Court of Appeal Rules**, any notice of appeal against the judgment was to be lodged within fourteen days of its delivery, that is, by the end of the day on 5th April 2023. 15. **Section 7** of the **Appellate Jurisdiction Act** confers jurisdiction on this Court to hear and determine an application for extension of time to file notice of appeal. The section provides: ***The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: ..***.. 1. The Supreme Court stated as follows in the case of in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others** **[2014] eKLR**, regarding the principles applicable to an application for enlargement of time: ***This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:*** 1. ***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;*** 2. ***A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court*** 3. ***Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;*** 4. ***Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;*** 5. ***Whether there will be any prejudice suffered by the respondents if the extension is granted;*** 6. ***Whether the application has been brought without undue delay; ..***. 7. The First Defendant’s case is that it lodged a notice of appeal dated 23rd March 2023. According to it, the notice of appeal was lodged in the High Court instead of this Court. I have perused the annexed copy of the notice of appeal. I note that there is also on record the filed version of the said notice of appeal. Both the annexed copy and the filed version state clearly in the heading that they were filed in this Court, specifically in this case and duly endorsed by the Deputy Registrar. It seems to me that, on the face of it, there is a valid notice of appeal on record. Any deficiencies are for determination by the Appellate Court. Consequently, prayers 3 and 4 of the application are dismissed. 8. The First Defendant has contended that there is need for leave to properly lodge a fresh notice of appeal since the earlier one was deemed as withdrawn in view of the provisions of **Rule 85** of the **Court of Appeal Rules**. **Rules 84** and **85** of the **Court of Appeal Rules** deal with institution of appeals in the Court of Appeal, a subject that is different from filing of notice of appeal under **Rule 77 (2)** of the **Court of Appeal Rules**. 9. The limited jurisdiction conferred on this Court under **Section 7** of the **Appellate Jurisdiction Act** does not extend to issues to do with institution of appeals in the Court of Appeal or determining whether an appeal to the said Court has been withdrawn. The First Defendant should move the Court of Appeal as appropriate on such issues. 10. In view of the foregoing discourse, I make the following orders: 11. **Leave is granted to the Honourable County Attorney - Nyamira, to come on record in representation of the First Defendant in place of Nyachiro Nyagaka & Company Advocates.** 12. **Prayers 3 and 4 of Notice of Motion dated 21st April 2026 are dismissed.** 13. **Considering that the application was not opposed, I make no order as to costs**. **Dated, signed, and delivered at Nyamira, this 16th day of June 2026.** **D. O. OHUNGO** **JUDGE** Delivered in the presence of: No appearance for the Plaintiff Mr Maronga for the 1st Defendant/Applicant No appearance for the 2nd to 4th Defendants No appearance for the 5th Defendant Court Assistant: B Kerubo