https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4209

Thiaka v Kabiru (Environment and Land Miscellaneous Application E017 of 2025) [2026] KEELC 4209 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4209 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Miscellaneous Application E017 of 2025 SM Kibunja, J July 8, 2026 Between John Thiaka Applicant and Richard Muthike Kabiru Respondent (Notice of Motion Dated 26th June 2025) Ruling 1.Through the notice of motion dated 26th June 2025, the Applicant seeks for inter alia, leave for the firm of C.N. Mwiti & Co. Advocates to come on record in place of the firm of A.P. Kariithi & Co. Advocates, following the judgment of the subordinate court; extension of time to lodge an appeal against the judgment delivered on 14th January 2025 in Kerugoya CMCC No. 208 of 2015; an order deeming the Memorandum of Appeal filed on 18th February 2025 in ELCLA No. E011 of 2025 as duly filed with leave of the Court; and an order of stay of execution of the judgment and decree delivered on 14th January 2025 in CMCC No. 208 of 2015 pending the hearing and determination of the intended appeal. The application is premised on the eleven (11) grounds appearing on its face marked (a) to (k) respectively, and is supported by the affidavits of the applicant, sworn on 26th June 2025 and 15th July 2025. 2.The Applicant depones that following the delivery of judgment on 14th January 2025, he instructed his then advocates, the firm of A.P. Kariithi & Co. Advocates, to lodge an appeal.According to him, although a Memorandum of Appeal was eventually filed, it was presented outside the prescribed period without the Court's prior leave, owing to the illness and subsequent demise of his advocate. Consequently, the appeal, being ELCA No. 11 of 2025, was struck out. He contends that the delay was neither deliberate nor attributable to him and urges the Court not to visit the mistakes and unfortunate circumstances affecting his former advocate upon an innocent litigant. 3.The Applicant further states that the dispute concerns Land Parcel NGARIAMA/NGIRIAMBU/3290, which he inherited from his late father before selling a portion thereof to the Respondent. He disputes the Respondent's characterization of him as a trespasser and maintains that the intended appeal raises arguable issues concerning the boundary between the parties' respective parcels.He further avers that unless execution is stayed, he stands to suffer substantial loss because his residential house stands on the disputed portion of land and his late son was buried there. He therefore urges the Court to preserve the status quo pending the intended appeal. 4.The application is opposed through the respondent through his Replying Affidavit sworn on 10th July 2025. The Respondent opposes the application on both procedural and substantive grounds. He contends that the incoming advocates are not properly on record, having failed to comply with Order 9 Rule 9 of the Civil Procedure Rules governing change of advocates after judgment. According to him, the purported consent exhibited by the Applicant does not satisfy the requirements of the Rule and the application is therefore incompetent. 5.On the merits, the Respondent contends that the Applicant has not demonstrated sufficient cause to warrant extension of time. He points out that the appeal sought to be revived was already struck out by this Court on 12th May 2025 and submits that a miscellaneous application cannot be used to revive proceedings which have since ceased to exist. He further maintains that this is the Applicant's third attempt to delay execution of a judgment obtained after protracted litigation spanning nearly a decade. 6.The Respondent further deposes that the Applicant has not established substantial loss within the meaning of Order 42 Rule 6 of the Civil Procedure Rules. He avers that the Applicant owns an adjoining parcel, namely NGARIAMA/NGIRIAMBU/4210, on which he is constructing an alternative residence, and therefore cannot properly claim to be rendered homeless. He also points out that the Applicant has neither offered security for the due performance of the decree nor complied with the order for payment of thrown-away costs made when ELCA No. 11 of 2025 was struck out. In his view, the application amounts to an abuse of the court process and ought to be dismissed with costs. 7.The following are the issues arising in the application for the court’s determinations:a.Whether the firm of C.N. Mwiti & Co. Advocates is properly on record for the Applicant.b.Whether the Applicant has established sufficient cause to warrant extension of time to lodge an appeal against the judgment delivered on 14th January 2025.c.Whether this Court can grant the prayer seeking to deem the Memorandum of Appeal filed in ELCA No. 11 of 2025 as properly filed with leave of the Court.d.Whether the Applicant has satisfied the conditions for grant of an order of stay of execution pending the intended appeal.e.Who pays the costs? 8.The court has carefully considered the grounds on the notice of motion, the affidavit evidence, submissions and come to the following determinations:a.The Applicant first seeks leave for the firm of C.N. Mwiti & Co. Advocates to come on record in place of the firm of A.P. Kariithi & Co. Advocates after judgment. The Respondent opposes the request on the ground that the Applicant failed to comply with Order 9 Rule 9 of the Civil Procedure Rules, arguing that the purported consent filed by the Applicant does not satisfy the requirements of the Rule and, consequently, that the incoming advocates lack the requisite standing to prosecute the application.b.Order 9 Rule 9 of the Civil Procedure Rules provides that where there is a change of advocates after judgment, such change shall not be effected without an order of the court upon an application with notice to all the parties or upon a consent filed between the outgoing and incoming advocates.The purpose of the Rule is to regulate the change of legal representation after judgment while safeguarding the interests of the outgoing advocate. It is not intended to impede a litigant's right of access to the court where compliance has become impossible through circumstances beyond the litigant's control.c.In the present case, the Applicant expressly seeks leave of the Court for the incoming advocates to come on record. The inability to file a duly executed consent is explained by the undisputed fact that the previous advocate, who practised as a sole practitioner, is deceased. In those circumstances, the absence of a signed consent cannot, without more, defeat the application.The Applicant has invoked the procedure contemplated under Order 9 Rule 9 by seeking leave of the Court, and the Respondent has been served and heard on the application. I am therefore satisfied that sufficient cause has been shown to permit the change of advocates. The firm of C.N. Mwiti & Co. Advocates is accordingly properly on record for the Applicant.d.I now turn to the substantive reliefs sought, of extension of time within which to appeal against the judgment delivered on 14th January 2025 and, consequentially, an order that the Memorandum of Appeal filed on 18th February 2025 in Kerugoya ELC Appeal No. E011 of 2025 be deemed as properly filed with the leave of the Court.The Applicant's case is that immediately after the judgment was delivered, he instructed his then-advocates to lodge an appeal. According to him, counsel prepared and filed a Memorandum of Appeal dated 18th February 2025, together with applications dated 5th March 2025 and 22nd April 2025. He deposes that because the appeal had been filed outside the statutory period without first obtaining leave, this Court struck out both the appeal and the application dated 22nd April 2025. He attributes those events to the omission of his previous advocates, whose principal subsequently became ill and later passed away.In his written submissions, counsel maintained that the appeal was filed only five days outside the statutory period and urged the Court to exercise its discretion under Sections 79G and 95 of the Civil Procedure Act, arguing that the Applicant should not be denied an opportunity to pursue an appeal because of counsel's inadvertence.e.The Respondent opposes those prayers, and submits that the Applicant has not demonstrated good and sufficient cause for the delay, and that the present application is yet another attempt to delay the enjoyment of a judgment obtained after prolonged litigation.He further argues that the appeal having already been struck out, the Court cannot, through the present miscellaneous application, revive or validate the Memorandum of Appeal filed therein.f.The jurisdiction of this Court to enlarge time is donated by Section 79G of the Civil Procedure Act which provides:“Every appeal from a subordinate 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.”The discretion conferred under the proviso to Section 79G is judicial, and must be exercised on a case-by-case basis. In determining whether good and sufficient cause has been established, courts have ordinarily considered the length of the delay, the explanation offered for the delay, whether the intended appeal raises an arguable issue, the prejudice likely to be occasioned to the respondent if time is enlarged, and, ultimately, whether the interests of justice favour the exercise of the Court's discretion.g.There is no dispute that judgment was delivered on 14th January 2025 and that a Memorandum of Appeal was filed on 18th February 2025, in Kerugoya ELC Appeal No. E011 of 2025, without leave. There is equally no dispute that this Court subsequently struck out both the appeal and the application dated 22nd April 2025. The explanation advanced for the initial delay is that the Applicant had promptly instructed his advocates to lodge an appeal, but that counsel failed to comply with the statutory timelines before later falling ill and passing away. Those circumstances are not disputed and, in an appropriate case, may well constitute sufficient cause for purposes of Section 79G. Ordinarily, the mistake or inadvertence of counsel ought not, without more, to be visited upon an innocent litigant.h.The difficulty in the present application, however, lies elsewhere. The Applicant does not simply seek leave to file a fresh appeal out of time. Instead, he specifically asks this Court to deem the Memorandum of Appeal filed on 18th February 2025 in Kerugoya ELC Appeal No. E011 of 2025 as properly filed with leave.It is common ground that the appeal in Kerugoya ELC Appeal No. E011 of 2025 was struck out by this Court on 12th May 2025 for having been filed outside the statutory period without leave. That order has neither been reviewed, set aside, nor challenged on appeal. It therefore remains a valid and subsisting order of the Court.i.In those circumstances, the Court is unable to grant the relief sought in Prayer (7). The jurisdiction conferred under Section 79G is to admit an appeal out of time upon sufficient cause being shown. The Applicant, however, has not sought leave to file a fresh Memorandum of Appeal within such period as the Court may direct. Rather, he invites the Court to retrospectively validate a Memorandum of Appeal filed in proceedings that have already been struck out. Granting that prayer would, in effect, undermine the subsisting order made on 12th May 2025 without that order first being reviewed, set aside, or otherwise lawfully interfered with. The present miscellaneous application cannot properly be used to achieve that result.Consequently, although I accept that the Applicant has offered an explanation for the initial delay in filing the appeal, the substantive relief upon which the application is anchored is unavailable in law. The prayer seeking extension of time cannot, therefore, succeed in the manner presented by the Applicant.j.The remaining prayer is for a stay of execution pending the intended appeal. That jurisdiction is governed by Order 42 Rule 6(2) of the Civil Procedure Rules, under which an applicant must demonstrate that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay, and that such security as the Court may order has been provided for the due performance of the decree.The Applicant states that he stands to suffer substantial loss because his residence stands on the disputed portion of land and because his late son's grave is situated there. The Respondent disputes those assertions and maintains that the Applicant owns the adjoining parcel, NGARIAMA/NGIRIAMBU/4210, upon which he is constructing another residence.The Respondent further points out that the Applicant has neither offered security for the due performance of the decree nor complied with the earlier order directing him to pay thrown-away costs.k.While I appreciate the Applicant's apprehension regarding the consequences of execution, the conditions set out under Order 42 Rule 6(2) are cumulative. The Applicant has not offered any security for the due performance of the decree, and, more fundamentally, the intended appeal upon which the prayer for stay is predicated upon has already been struck out for the reasons already given elsewhere above. In those circumstances, the prayer for a stay cannot be sustained.The upshot is that, save for the prayer seeking leave for the firm of C.N. Mwiti & Co. Advocates to come on record for the Applicant, the Notice of Motion dated 26th June 2025 is devoid of merit.l.Under Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya, costs follow the events unless where for good cause being shown, the court directs differently. In this instance, as the applicant has failed in all the primary prayers except that for counsel to come on record, he will pay the respondent’s costs. 9.Flowing from the above conclusions on the notice of motion dated the 26th June 2025, the court finds and orders as follows:a.That save for the prayer for counsel to come on record for the applicant, that is allowed, the other prayers are dismissed.b.That the applicant will pay the respondent’s costs.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 8TH DAY OF JULY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Applicant – M/s NgumbauRespondent – Mr. MuchiraKinyua/Charles - Court Assistant