https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4384

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC L MISC NO. E028 OF 2026** **JOSEPH KELOI PARSAYIATO………………………...............APPLICANT** **VERSUS** **DISTRICT LAND REGISTRAR KAJIADO CENTRAL.....RESPONDENT** **RULING** 1. The Applicant, by **Notice of Motion dated 7th May 2026** seeks leave to file an Appeal out of time against the Respondent’s decision made on 26th September 2014. 2. The application is premised on the grounds that there has existed a boundary dispute concerning parcels Kajiado/Kaputiei North/830, 831 and 840. The Applicant avers that following a site visit conducted by the District Land Registrar on 2nd September 2014, the Land Registrar rendered a decision dated 26th September 2014. Dissatisfied with that decision, he instructed his then advocate to lodge an appeal through Machakos ELC No. 152 of 2014, which was subsequently transferred to Kajiado and became Kajiado ELC No. 421 of 2017. This suit was dismissed in 2018 for want of prosecution. 3. He claims that he was unaware of the status of the suit, as his then advocate failed to apprise him. He thereafter instructed another advocate who instituted Kajiado ELC No. E015 of 2021. However, this suit was struck out. He maintains that his land has been encroached upon and urges the Court to enlarge time to enable him challenge the Land Registrar’s decision. 4. The Respondent did not file a response and at the time of writing this, none of the parties had filed their submissions. 5. The single issue for determination therefore is, ***whether the Applicant has established a case that warrants grant of leave to file an appeal out of time against the Respondent’s decision dated 26th September 2014***. 6. The jurisdiction of this Court to enlarge time is discretionary and must be exercised judicially upon sufficient cause being shown as espoused by **Section 95 Civil Procedure Act** and **Order 50 Rule 5 Civil Procedure Rules**. The Supreme Court of Kenya in **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] KESC 12 (KLR)** also reiterated that “… ***Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it…***” 7. The impugned decision sought to be appealed against was rendered on 26th September 2014, whereas the present application has been filed on 7th May 2026, approximately twelve years later. Such delay is inordinate and calls for a cogent, satisfactory and credible explanation before this Court can exercise its discretion in the Applicant’s favour. The explanation offered by the Applicant is that he instructed his former advocate to challenge the Land Registrar’s decision through Kajiado ELC No. 421 of 2017( formerly Machakos ELC No. 152 of 2014), and he only later learned that the suit had been dismissed for want of prosecution. While mistakes of counsel may, in appropriate circumstances, constitute sufficient cause, such allegation alone does not automatically warrant enlargement of time. A litigant bears a corresponding duty to diligently follow up the progress of his own case. 8. It is also evident from the Applicant’s affidavit that Kajiado ELC No. 421 of 2017 (formerly Machakos ELC No. 152 of 2014), was filed upon dissatisfaction with the Land Registrar’s decision of 26th September 2014 and it was dismissed for want of prosecution on 7th March 2018. Curiously, despite placing reliance on that suit, the Applicant did not annex the pleadings, proceedings or orders therein to enable this Court ascertain the issues that were before the Court and the reliefs sought. That omission is significant because the Applicant’s own averment were that the said suit was filed following the Land Registrar’s decision of 26th September 2014. 9. Further, the record shows that Kajiado ELC No. E015 of 2021 was struck out on the basis that it involved the same parties and subject matter as Kajiado ELC No. 421 of 2017. The applicant does not explain why he did not seek setting aside of the dismissal order in Kajiado ELC No. 421 of 2017 which he had initially filed to set aside the Land Registrars report. 10. Having considered the entire material placed before me, I am not satisfied that the Applicant has demonstrated good and sufficient cause to justify the exercise of this Court's discretion in his favour. 11. Consequently, the **Notice of Motion** dated **7th May 2026** lacks merit and is hereby dismissed. Given that the application was unopposed, I make no order as to costs. **Dated, Signed and Delivered virtually at Kajiado this 9th day of July 2026.** **JUDY OMANGE** **JUDGE.** **IN THE PRESENCE OF:** Mr Getanda for Applicant. N/A for Respondent. Peter – Court Assistant.