https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4827

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC JUDICIAL REVIEW MISC APPLICATION NO. 3 OF 2014** **JOHN NYAGA…………………………........................................APPLICANT** **VERSUS** **JOSPHAT NYAGA MUKEMBO** **(ON BEHALF OF 21 OTHERS AS LISTED)… …..APPLICANTS/RESPONDENTS** **THE HON. ATTORNEY GENERAL………………………..…1ST RESPONDENT** **MINISTER FOR LANDS…………….………………………..2ND RESPONDENT** **AND** **FRANCIS NJERU NTHAKANIO (DECEASED)** **REPRESENTED BY ALBERT NJERU GACHONI…...…1ST INTERESTED PARTY** **RUGANO NTHIGA…………………………….……..2ND INTERESTED PARTY** **THE LANDS REGISTRAR, MBEERE DISTRICT………3RD INTERESTED PARTY** RULING 1. Vide the Notice of Motion dated 08/08/2025, the Applicant is seeking interalia, stay of execution of the Ruling delivered by this Court on 09/05/2025 to enable the Applicant file an appeal; that the Applicant be granted leave to file an appeal out of time against the Judgement dated 09/06/2016. 2. The application is based on grounds on the face of the application supported by the affidavit of the Applicant, John Nyaga Kamau sworn on 08/08/2025. He avers that he is the registered owner of parcel No. Mbeere/Mbita/2185 and that he only became aware of the Judgement dated 09/06/2016 after it was delivered. He avers that the said judgement affects him adversely yet he was not granted an opportunity to defend or be heard contrary to the rules of natural justice. That the ruling of this Court delivered on 09/05/2025 affects him adversely and it is for that reason that he prays for stay of execution to enable him appeal against the said Ruling. That he also intends to file an appeal out of time against the Judgment dated 09/06/2016. He attached a bundle of documents to his supporting affidavit. 3. The 1st Applicant, Josphat Nyaga Mukembo in opposition to the application filed a replying affidavit dated 16/02/2026. He deposed that the Applicant did not give a good reason why he never appealed within time against the judgement of the Court and that it is strange that he is seeking to appeal against a judgement after close to ten years of inaction. He averred that the instant application was aimed at navigating around the outcome of this court’s Ruling of 09/05/2025 unprocedurally and in any case, the Applicant has not satisfied the legal requirements to warrant the orders sought especially after such a long delay. He contended that these being Judicial Review proceedings, the role of this court is limited and cannot be invoked endlessly. He urged that the application be dismissed with costs. 4. The 2-22nd Applicants through Charles Njeru Nyaga opposed the application through the replying affidavit dated 30/01/2026. He deposed that there was inordinate delay of 10 years for seeking to set aside the judgement which has not been satisfactorily explained. He averred that the Applicant had filed a similar application dated 20/07/2023 which sought to set aside the judgement dated 09/06/2016 and which was dismissed by the Court on the grounds that the Court was functus officio. That the Applicant was being dishonest in saying that he was not aware of the proceedings that led to the judgement of 09/06/2016 as service was duly effected and numerous persons from the Applicants clan participated in the proceedings. 5. He averred that the suit was litigated for over fourteen years and if the Applicant had any legitimate interest, he had every opportunity to apply for joinder and therefore his silence demonstrates waiver, acquiescence and laches. He averred that there was inordinate delay of nearly three months in bringing the application as the Ruling of the Court was delivered on 09/05/2025 whereas the application was filed on 14/10/2025. That the Applicant had not demonstrated substantial loss or the reason for the delay thus failing the test for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. He maintained that the application is frivolous, vexatious and an abuse of the court process and should be dismissed with costs. 6. The 1st and 2nd Respondents through the Office of the Attorney General filed grounds of opposition dated 23/03/2026 and set out grounds inter alia, that the appeal does not raise triable issues with high chances of success; that the application is incompetent, misconceived and an abuse of the process of the Court; that the Applicant has not given a reasonable explanation for the delay in lodging the appeal within time; that extension of time is an equitable remedy which is only available to a deserving party who demonstrates sufficient cause for the delay, which the Applicant has failed to do; and that the application has not met the threshold for granting the orders sought. 7. When the application came up for directions, the parties agreed canvass it by way of written submissions. 8. The Applicant filed submissions dated 23/03/2026 through the firm of S.M. Kitonga and Company Advocates. He submitted that Order 53 of the Civil Procedure Rules is mandatory in nature in that all parties affected by the decision being reviewed must be duly served with the substantive motion whereas on his part he was not served. He contended that he was strongly of the view that the Judgement delivered on 09/06/2016 should be set aside for reason that, the Respondents did not make full disclosure of material facts and that he was condemned unheard and the implementation of the judgement will have irreparable damage on him. He that the application be allowed. 9. The 1st Applicant filed submissions dated 17/06/2026 through the firm of Victor L. Andande and Company Advocates. He submitted that there was nothing to stay as the impugned orders was to strike out the various applications in this suit hence they were negative orders. He cited the case of Bidii Traders Savings Credit Group(Suing through its officials) Simon Kiambi Ngaruri (Secretary) & Another V Kiarii & Another [2022]KEHC 1368(KLR) to support that position and urged that the application be disallowed on that ground. He submitted further that on the issue of leave to appeal out of time, is the preserve of the Court of Appeal under the Appellate Jurisdiction Act and the Court of Appeal Rules. He averred that the application was not brought within reasonable time in the circumstances of the case and urged that it be dismissed with costs. 10. The 2– 22nd Applicants filed submissions dated 07/04/2026 through the firm of Kamunde Njue & Company Advocates. They submitted that the orders emanating from the Ruling of 09/05/2025 are negative orders incapable of execution and thus incapable of being stayed. That the Applicant had met the requirements for the orders sought. They submitted further that this Court does not have the power to extend time for filing an appeal to the Court of Appeal as that lies with the superior Court. 11. The 1st and 2nd Respondents filed submissions dated 23/03/2026 through the Office of the Attorney General. They submitted that the Applicant had failed to satisfy the threshold for grant of the orders sought. That the delay of close to ten years is inordinate, unexplained and inexcusable and the Applicant had not laid any sufficient basis to warrant the exercise of this Courts discretion in his favour. They submitted that the Applicant had failed to meet the requirements of Order 42 Rule 6(2) of the Civil Procedure Rules for grant of stay of execution pending appeal. They urged that the application is devoid of merit and seeks to unjustly deprive the Respondents of a judgement delivered nearly a decade ago and therefore should be dismissed with costs. 12. I have considered the application, the responses made to it and the parties’ submissions. I find that the issues for determination are: 13. Whether the Court should grant a stay of execution of the Ruling delivered by this Court on 09/05/2025 to enable the Applicant file an appeal to the Court of Appeal 14. Whether the Applicant should be granted leave to file an appeal out of time against the Judgement dated 09/06/2016. 15. On the first issue, the principles governing the grant of stay of execution pending appeal are set out under Order 42 Rule 6 of the Civil Procedure Rules. However, the Ruling delivered by this Court on 09/05/2025 struck out the Applicant's applications dated 30/09/2020, 19/04/2021, 30/04/2021, 13/01/2023 and 20/07/2023 on the ground that they had been irregularly filed in a concluded Judicial Review matter. In the circumstances, the impugned ruling gave rise to a negative order incapable of execution. There is therefore nothing capable of being stayed pending the intended appeal. The prayer for stay of execution therefore fails. 16. The second issue concerns the Applicant's prayer for leave to file an appeal out of time against the Judgment delivered on 09/06/2016. Although the Applicant has invited this Court to exercise its discretion in his favour, the Respondents have raised a jurisdictional issue as to whether this Court has the power to grant the orders sought. In the case of [Kenya Airport Authority & another v Timothy Nduvi Mutungi [2014] KECA 241 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/241/eng%402014-11-21) in which an application for extension of time to lodge Notice of Appeal was filed in the High Court and the High Court declined to hear it, instead requiring the applicant to file the application in the Court of Appeal, Hon. Githinji JA, had this to say:- “The application of December 10, 2012 (the application for extension of time to lodge Notice of Appeal out of time), was properly made in the High Court as High Court has power to extend time for giving notice of intention to appeal pursuant to Rule 7 of the[Court of Appeal Rules](https://kenyalaw.org/akn/ke/act/1977/15)(sic) (clearly meant Section 7 of the [Appellate Jurisdiction Act](https://kenyalaw.org/akn/ke/act/1977/15))…Since the application for extension of time for lodging a notice of appeal made in the High Court was competent and which the High Court should have determined and since the present application was made within the 30 days stipulated by order of the High Court made by consent on 17th June 2013, the delay which is material is from the date following the delivery of the impugned Judgment… the High Court had jurisdiction by virtue of section 7 of the [Appellate Jurisdiction Act](https://kenyalaw.org/akn/ke/act/1977/15) to entertain and determine the application for extension of time. " 1. I therefore find that this Court has jurisdiction to determine the Applicant's prayer for extension of time. 2. The guiding principles are now well settled. InLeo Sila Mutiso v Rose Hellen Wangari Mwangi, [1999] 2 EA 231, the Court of Appeal had this to say: “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. See also the Supreme Court decision of [Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/12/eng%402014-07-04). 2. In the present case, the Judgment sought to be appealed against was delivered on **09/06/2016**, whereas the present application was filed on 14/10/2025 about 9 years and 3 months. That delay is undoubtedly inordinate. Although the Applicant contends that he only became aware of the Judgment after it had been delivered and that he was condemned unheard, he has not satisfactorily explained why he failed to take steps to appeal within a reasonable time after becoming aware of the Judgment. In the circumstances, I find that the delay has not been satisfactorily explained. I therefore find that the Applicant has not laid a sufficient basis for this Court to exercise its discretion in his favour. 3. Consequently, I find that the Notice of Motion dated **08/08/2025** is devoid of merit and the same is hereby dismissed with costs to the Respondents. DATED, DELIVERED AND SIGNED AT EMBU THIS 23RD DAY OF JULY, 2026. ……………………………. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. Ms Chebet holding brief Kamunda for 2nd – 22nd Applicants. 2. Mr Andade for the 1st Applicant. 3. Mr Muriithi holding brief for Mr Kiongo for the 1st and 2nd Respondent. 4. Ms Kitonga for the interested Applicant 5. Ruth – Court Assistant