J.M. Njenga & Co. Advocates LLP v Kimuri Housing Company Ltd (Environment and Land Miscellaneous Application E129 of 2023) [2026] KEELC 4391 (KLR) (14 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC L MISC. NO. E129 OF 2023 J.M. NJENGA & CO. ADVOCATES LLP...ADVOCATE/APPLICANT VERSUS KIMURI HOUSING COMPANY LTD ...... CLIENT/RESPONDENT RULING 1. What is before the Court for determination is the Advocate/Applicant’s Notice of Motion dated 8th April 2025 in which it seeks the following Orders: a) That the Advocate/Applicant be granted leave to Appeal against the Ruling delivered on 14th March 2025. b) That the costs of this application do abide the outcome of the intended appeal. ELC L MISC. NO. E129 OF 2023 Ruling Page 1 of 10 2. The application is premised on grounds on its face and on the supporting affidavit of Vivianne Wachanga, Advocate. She avers that she is dissatisfied with the Ruling delivered on 24th March 2025. The Applicant has already filed a Notice of Appeal and requested for typed proceedings with a view of lodging an Appeal at the Court of Appeal. Further, that leave was sought orally when the Ruling was delivered but the Court directed the filing of a formal application and since it is the Applicant’s constitutional right to Appeal, it seeks leave as its intended Appeal has high chances of success. Response 3. The application is opposed by the Respondent vide the replying affidavit of its director, one Margaret Wambui Ngugi. She avers that the instant application seeks leave to Appeal out of time because the Notice of Appeal annexed was filed without leave of the Court. Further, that the application is unmerited because it does not satisfy the burden of proof to warrant leave and the grounds adduced ELC L MISC. NO. E129 OF 2023 Ruling Page 2 of 10 do not warrant extension of time as the Applicant failed to demonstrate good and sufficient cause, and it is filed after inordinate delay, which has not been explained. 4. The application was canvassed by way of written submissions. Submissions 5. The Applicant urges the Court to disregard the typo at prayer (1) of its application, which erroneously indicates that the impugned Orders were issued on 14th March 2025, instead of the correct date of 24th March 2025. 6. It also submits that it has demonstrated that it has an arguable Appeal which raises arguable points of law regarding instruction fees and interest. Further, that the Respondent’s replying affidavit is misconceived as it addresses extension of time to Appeal yet the application concerns leave to Appeal. On delay, it submits that the ELC L MISC. NO. E129 OF 2023 Ruling Page 3 of 10 application was filed timeously but, if there is any delay, it is neither inordinate nor inexcusable. It also submits that pursuant to Article 48 and 50 of the Constitution, the Court is required to lean in favour of sustaining rather than terminating litigation as it has the right to access to justice and fair hearing. 7. To buttress its averments, the Applicant relied on the following decisions: Kenya Commercial Bank Limited v Nichola Ombija [2009] eKLR, and Stanley Kangethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR. 8. On its part, the Respondent submits that grant of leave to Appeal a Ruling on a reference is not automatic, it is a matter of judicial discretion to be exercised upon demonstration that the intended Appeal is arguable, which the Applicant failed to demonstrate as it is merely dissatisfied with this Court’s decision, which is not sufficient ground for grant of leave to Appeal. ELC L MISC. NO. E129 OF 2023 Ruling Page 4 of 10 9. To buttress its averments, the Respondent relied on the following decisions: Hermanus Philipus Steyn v Giovanni Gnecchi -Ruscone [2013] eKLR and Joreth Ltd v Kigano and Associates [2002] eKLR. Analysis and Determination 10. Having considered the instant Notice of Motion application including the respective affidavits and rivalling submissions, the only issue for determination is whether the Applicant has demonstrated sufficient cause to warrant this Court’s leave to Appeal its Ruling dated 24th March 2025. 11. The Respondent argues that there is no demonstration that the Applicant’s intended Appeal raises arguable points of law deserving the Court of Appeal’s audience. 12. Paragraph 11(3) of the Advocates Remuneration Order, 2014 makes provisions on Appeal from references, to the Court of Appeal, as follows: ELC L MISC. NO. E129 OF 2023 Ruling Page 5 of 10 “Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.” 13. What is the Court to consider before granting such leave? In Onindo & Associates Advocates v Gatatha Farmers Co Limited & another [2022] KEELC 2039 (KLR), the Court held that: “Since the reference is decided, the law contemplates a finality at that point. But it grants a chance for a party who is aggrieved from the decision of the judge to seek leave of the court to move to the court of appeal. What the Court ought to consider is the possibility of the success of the intended appeal. That possibility must be real in the mind of the court granting the leave, as was stated in the Canadian case of Ravelston Corporation Limited (Re), 2007 Onca 268 (CanLii). In the case, the court stated thus: “A leave to appeal application is not the time to assess, much less decide, the ultimate merits of a ELC L MISC. NO. E129 OF 2023 Ruling Page 6 of 10 proposed appeal. However, the applicant must be able to convince the court that there are legitimately arguable points raised so as to create a realistic possibility of success on the appeal.” 14. What is the consequence of non-compliance with paragraph 11(3) of the Advocates Remuneration order, 2014? The Court of Appeal will not give audience to a party who skips the procedure to seek leave. It stated as follows in Museum View Office Suites Limited v Muri Mwaniki & Wamiti Advocates [2025] KECA 1962 (KLR): “This Court has previously held that a party who does not seek leave to appeal against a decision of a judge on a reference in taxation proceedings does not have standing before this Court.” 15. In this instance the Court delivered Ruling dated the 24th March, 2025 in respect to a Reference dated the 1st July, 2024. The Applicant being aggrieved with the said Ruling, filed the instant Notice of Motion application on the 8th April 2025, which was within two (2) weeks after the impugned ELC L MISC. NO. E129 OF 2023 Ruling Page 7 of 10 Ruling. Further, as per the aforementioned provisions from the Advocates Remuneration Order, a party aggrieved with a Ruling from a Reference is expected to seek leave from the Judge, in the event it seeks to Appeal. The Respondent has argued that there was delay in filing the instant application, but I beg to disagree as it is only a delay of two weeks, which is excusable. 16. As to whether the intended Appeal is arguable, I note the Applicant was aggrieved with the Ruling of the Taxing Master as it related to the Bill of Costs dated the 14th November, 2023, emanating from Nairobi ELC 189 of 2015. There was a dispute on the value of the suit property to aid in calculation of the instructions fee and getting up fees. The Applicant argues that it has a Constitutional right to Appeal and contends that its intended Appeal has high chances of success. I opine that since an Appeal is a Constitutional right, as a Court I cannot deny an aggrieved party leave to Appeal, if they are aggrieved with my decision. ELC L MISC. NO. E129 OF 2023 Ruling Page 8 of 10 17. In the foregoing, while relying on the legal provisions cited above and decision quoted, I find that the Applicant is entitled to leave to Appeal against this Court’s impugned Ruling of 24th March 2025, and will allow it. 18. In the circumstances, I find the instant Notice of Motion application dated the 8th April 2025 merited and will allow it. 19. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Ms Kimani holding brief for Ms Wachanga for Advocate/Applicant Court Assistant: Vena ELC L MISC. NO. E129 OF 2023 Ruling Page 9 of 10 ELC L MISC. NO. E129 OF 2023 Ruling Page 10 of 10