https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3824

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **MISC. CIVIL APPLICATION NO. E 011 OF 2022** **JOSEPH MMEMI ……………………………………………… APPLICANT** **= VERSUS =** **PATRICK WANDERA OKUMU …………..….……….... RESPONDENT** **RULING** 1. Vide a Notice of Motion dated 31st August 2022, the applicant herein seeks the following orders: - 2. Spent 3. Spent 4. That this Honourable Court be pleased to enlarge time in order for the applicant to file an Appeal against the whole decision and decree in Busia Chief Magistrate’s Court ELC Case No.7 of 2020 delivered on 17th February, 2021. 5. That the Honourable Court be pleased to find the Memorandum of Appeal filed herein duly filed upon payment of requisite fees. 6. That upon grant of Order 4 herein above, conservatory orders be issued to preserve status quo *ante* judgment pending determination of the Appeal 7. That this Honourable Court be pleased to issue any other order(s) as it may deem necessary to meet the circumstances of the case. 8. The application is premised on the grounds that the applicant who was dissatisfied with the judgment of the lower court, has already preferred an appeal against it; that the intended appeal is merited, arguable and has high chances of success; that there is need to stay execution since the subject matter of the Appeal is land and that the delay in filing the application is attributable to the fact that he had filed an application for stay in the lower court which application was rejected by the lower Court. 9. The application is supported by the affidavit of the applicant sworn on 31st August 2022, in which the grounds on the face of the application are reiterated. Besides reiterating the grounds on the face of the application, the applicant has annexed the following documents to the affidavit: Copy of the judgment and decree of the lower court; Draft Memorandum of Appeal; Letter from the County Surveyor dated 12th November, 2021 concerning execution of the decree of the lower court and court order given on 11th November, 2021 for provision of security to the surveyor when executing the decree of the Court. 10. The application was served upon the respondent’s previous firm of advocates through what is describes as their last known email address; bmoumaadvocates@gmail.com. The advocates are said to have acknowledged service. 11. Despite the application having been served in the above captioned manner, no response was received in respect thereof, rendering the application to be unopposed. 12. The application was disposed of by way of written submissions. 13. In **Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014** the Supreme Court of Kenya, laid down the following as the underlying principles that a court should consider in exercise of the discretionary power vested in it to extent time to file an Appeal out of time**: -** **i. Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;** 1. **The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;** 2. **As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;** 3. **Where there is a reason for the delay; the delay should be explained to the satisfaction of the court;** 4. **Whether there will be any prejudice to be suffered by the respondents if the extension is granted;** 5. **The application should have been brought without undue delay; and** 6. **In certain cases, like election petitions, public interest should be a consideration for extending time.** 7. In the circumstances of this case, the decision/judgment sought to be appealed from, was delivered on 17th February, 2021. The instant application was filed on 7th September 2022, more than 18 months after judgment was delivered. 8. Whilst the applicant claims that he was delayed in filing the intended appeal because of an application for extension of the Appeal which he had filed in the lower Court, which application was rejected by the lower Court, the applicant has not provided any evidence capable of confirming to this Court that he had indeed made an application for stay before the lower Court; that the application was rejected by the lower Court and when the decision of the lower Court rejecting the application, if any was made. Most fundamentally, the explanation offered does not form a good ground for failure to file the intended appeal out of time as a diligent litigant would not wait for an application for stay of execution to be heard first before they can apply. 9. Cognizance of the fact that ordinarily, an Appeal ought to precede an application for stay of execution pending appeal, I find the explanation offered by the applicant to be incapable of forming the basis of the delay of over 18 years, which delay I find to be not only inordinate, but not properly accounted for. 10. Concerning the applicant’s claim that he has an arguable appeal with high chances of success on appeal, I note from the judgment of the Court sought to be appealed from, that the judgment of the lower Court premised to be appealed from, is predicated on an award of the Land Disputes Tribunal which was adopted as an order of the Court. That order of the Court was never challenged or appealed from using the legally available mechanisms of challenging such a decision. 11. Whilst the argument advanced by the applicant that the award of the tribunal was a nullity in law is legally correct, the award having been adopted as an order of Court ceased to exist independently and is as such incapable of forming the basis of the applicant’s intended appeal. The intended appeal to the extent that it is premised on the jurisdiction of the Land Disputes Tribunal (now repealed) to hear and determine the dispute preferred before it, not being a decision of the lower court appealed from, cannot form a basis of the intended appeal. In that regard, see the case of **Florence Nyaboke Machani v. Mogere Amos Ombui (2018) KEELC 1035 (KLR)** where **Mutungi J**., as he then was, stated/held: - **“The Keroka Magistrate cannot be faulted for making an order adopting the award of the Tribunal. He did what was expected of him. There was no basis upon which the magistrate could have reviewed the order he made. True, the resultant implementation of the decree arising from the judgment may effectively mean a decision made without jurisdiction by the Tribunal may have been sanctified but that is why it is often said the law is an “ass” as it can at times produce unjust results. The courts merely interpret the laws handed down by the legislature. The appellant perhaps may have had a different result if the appropriate dispute resolution mechanism established under the Land Disputes Tribunals Act, was aptly followed. There was a misstep in her pursuit of legal redress and owing to that, she may have to live with the consequences. See case of Paul Muraya Kaguri -vs- Simon Mbaria Muchunu [2015] eKLR where in a similar matter as the one before me L. N. Waithaka, J. stated:** **‘It is now trite law that where a statute establishes a dispute resolution mechanism, that mechanism must be followed. Where a party fails to follow the established dispute mechanism, she cannot be heard to say that her rights were denied. …the Trial Magistrate’s duty under the law was merely to adopt the award of the Land Disputes Tribunal, she had no mandate to enquire into the legality or otherwise of the judgment.”** 1. Concerning the aspects of the appeal touching on adverse possession, it is the considered view of this Court that the said determination cannot form a good basis of challenging the decision of the lower court as it lacked jurisdiction to hear and determine a claim for adverse possession. In that regard, see the case of **Sugawara v. Kiruti (Civil Appeal No. E141 of 2022) (2024) KECA 1417 (KLR) (11 October 2024) (Judgment)**, where the Court of Appeal stated/held: - **“It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specially limited to the Environment and Land Court to the exclusion of Magistrates’ Court. 49. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specied in the hierarchy of courts, in terms of section 7 of the Magistrates Courts Act. In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be by the time.., the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act. 50. In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession.”** 1. Whilst the applicant claims that he had become entitled to three acres of the suit property; it is the considered view of this court that entitlement to the suit property on account of having been in adverse possession having been made by a Court that lacked jurisdiction to hear and determine it, any determination on such a claim cannot form a basis for filing an appeal against the decision of the court. 2. In view of what I have discussed herein above, I do not agree with the applicant that the appeal is merited, arguable and with a high chance of success. 3. The upshot of the foregoing is that I find the Notice of Motion dated 31st August 2022 to be lacking in merit and l dismiss it with no orders as to costs, the same being undefended. 4. Orders accordingly. **Ruling dated, signed and delivered virtually at Busia this 8th day of June 2026 in the absence of the parties** **L. N. WAITHAKA** **JUDGE** Court Assistant: Bernard Sikolia