https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4972

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KAPSABET** **ELCLMISC. APPLICATION NO. E005 OF 2026** **JONAH SUM………………………………………………………APPLICANT** **VERSUS** **EZEKIEL AMAISA……………………………………………….RESPONDENT** **RULING** 1. The applicant, John Jonah Sum through Cheruiyot Melly and Associates Advocates initiated an application by way of a Notice of Motion dated 5th March 2026 for the following orders; 2. Moot 3. ​That, the Honourable Court be pleased to grant leave to the Applicant to file Appeal out of time against the Judgement delivered by **Hon. John Aringo (PM)** on the 19th December, 2025 in the Kapsabet Chief Magistrate's Environment and Land Case No. E064 of 2022. 4. ​That, the Honourable Court be pleased to issue an order for stay of Execution of the said Judgement delivered by **Hon. John Aringo** (PM) on the 19th December, 2025 in the Kapsabet Chief Magistrate's Environment and Land Case No. E064 of 2022. 5. ​That, costs of this Application be provided for. 6. ​Any other reliefs that the Court may deem fit to grant. 7. The application is anchored upon the applicant’s supporting affidavit of eleven paragraphs sworn on even date and the accompanying copy of the judgment delivered on 19th December 2025 in Kapsabet Chief Magistrate’s Court Environment and Land case No. E064 OF 2022 and Kapsabet ELCL Appeal No. E001 of 2026 being pending appeal on mesne profit alongside the five grounds, inter alia; 8. That, the failure to file an Appeal out of time was due to medical treatment the intended appellant was receiving. 9. That, further the appellant had financial constraint due to the medical treatment he was undergoing hence failing to duly instruct his advocate on record to institute the Appeal process. 10. The Respondent, Ezekiel Amaisa who appears in person, opposed the application by the replying affidavit of sixteen paragraphs sworn on 20th May 2026 where he averred in part, that the applicant has not demonstrated any sufficient or plausible reason for inordinate delay in mounting the intended appeal. Further, he averred thus; 11. That the Applicant alleges that he was sickly and thus unable to file the Appeal within time, which allegation is false, misleading and not supported by any credible medical evidence. 12. That the Applicant’s conduct demonstrates bad faith, lawlessness, and utter disregard for the rule of law, and he therefore does not deserve the equitable relief sought from this Honourable Court. 13. That the reasons advanced for the delay are mere afterthoughts intended to mislead the Court into exercising its discretion in favour of the Applicant. 14. That he was aware that the trial Court’s judgement was delivered on 19/12/2025 and having been dissatisfied on the question of mesne profits, he lodged ELC Appeal No. E001 of 2026 before this Honourable Court seeking mesne profits, and the Applicant is fully aware of the said Appeal as per ***copies of the memorandum of Appeal and record of Appeal annexed ed herewith and marked “EA-3 a & b” respectively annexed to the affidavit in support of the application.*** hat the applicant had an opportunity to file a cross appeal in response to the said appeal but deliberately failed and/or refused to do so. 1. In the submissions dated **23rd June 2026**, learned counsel for the applicant referred to the application inclusive of the orders sought in it and the replying affidavit thereto. It was submitted, inter alia, that the applicant was the defendant in Kapsabet CMC Environment and Land case number E064 of 2022. That judgment was delivered against the applicant in terms of eviction and permanent injunction. Counsel framed three issues inclusive whether the applicant deserves the prayers in the application and whether the prospective appeal as captured in the draft memorandum of appeal, has trial issues. That he suffered ill health and due to deficient financial resources, he was unable to file appeal from the judgment. 2. Further, counsel discussed the issued in favour of the applicant and submitted that the application be allowed accordingly. To buttress the submissions, reliance was made on case law including **Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others (2013) eKLR** as regards the principles governing an application for extension of time namely the length of the delay and reasons for the delay, among others and **Kenya Commercial Bank Ltd vs Benjo Amalgamated Limited & another (2017) eKLR** on not shutting out parties from ventilating their grievances on the merits. 3. By the submissions dated 23rd June 2026, the respondent made reference to the application, the replying affidavit and delineated four issues for determination inclusive of whether the applicant has established sufficient cause in the application which is incompetent in view of pending appeal and conditions under O 42 Rule 6 of the Civil Procedure Rules 2010, not satisfied herein. That the applicant has failed to substantiate the alleged illness, not proven any sufficient cause as provided for under section 79 G of the Civil Procedure Act Chapter 21 Laws of Kenya did not file cross appeal in the pending appeal. 4. To fortify the submissions, counsel cited Nicholas Salat case (supra) regarding on the principles governing an application to appeal out of time. Also, relied on the case of **Total Security Surveillance Ltd another vs Oluoch {2024) KEHC 1032 (KLR)** that the respondent duly served, ought to file a cross appeal or separate appeal hence, counsel urged the court to dismiss the application with costs to the respondent. 5. I have duly considered the application, the relying affidavit and the rival submissions in entirety. So, is the application merited? 6. Plainly, the principles governing an application to appeal out of time are well settled by the decision in Nicholas Salt case (supra). This is an equitable discretionary remedy to a deserving party. 7. The instant application was commenced close to three months after the decision of the trial court. The respondent terms the delay inordinate and that the alleged illness or medication on the part of the applicant has not been proved. Indeed, the applicant has not proved illness and financial constraint as reasons for the delay thus, the respondent’s contention is affirmative in the circumstances. 8. In that regard, I subscribe to the decision in the case of **County Executive of Kisumu vs County Government of Kisumu & 8 others (2017) eKLR,** the Court observed; *’It is trite that in application for extension of time, the whole period of delay should be declared and explained satisfactory to the court’* 1. It is common ground that **KAPSABET ELC Appeal No. E001 of 2026**; the respondent vs the applicant is pending before this court. The said appeal by the memorandum of appeal dated 29th December 2025 relates to award of mesne profit by the magistrate’s court as disclosed in orders (a) (b) and (c) sought therein. The applicant did not file any cross appeal thereto. 2. Section 13 (7) of the Environment and Land Court Act 2015 (2011) empowers this court to grant interim preservation orders. The orders sought in the application fall under that category. 3. Moreover, it is established law that the court has the discretion to grant the prayers on the face of the application; see **Butt vs Rent Restriction Tribunal (1979) eKLR.** 4. Besides, the pending appeal, Kapsabet ELCL Appeal No. E001 of 2026 is on the same subject matter and the same parties in this application., The applicant being conscious of the said appeal deliberately filed the instant application, does not deserve any preservation orders in the circumstances. 5. Accordingly, the application dated 17TH March 2026 is devoid of merit. The same is hereby dismissed with costs to the respondent. 6. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **28th day July 2026**. **HON. G M A ONGONDO** **JUDGE** **In the presence;** 1. Mr Serem learned counsel for the applicant 2. Mr Yuri learned counsel for the respondent 3. Respondent-Present virtually, muted 4. Walter and Emmaculate, Court Assistants