Sambu v Mugo & another (Environment and Land Miscellaneous Application E016 of 2026) [2026] KEELC 4164 (KLR) (2 July 2026) (Ruling)

Sambu v Mugo & another (Environment and Land Miscellaneous Application E016 of 2026) [2026] KEELC 4164 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4164 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Miscellaneous Application E016 of 2026 LC Komingoi, J July 2, 2026 Between Justus Letio Sambu Applicant and John Wachira Mugo 1st Respondent Elijah Kipruto Mosop 2nd Respondent Ruling 1.The Applicant filed the instant application dated 12th February, 2026 seeking the following orders:1.Spent.2.That the Honourable Court be pleased to grant leave and extend time to the Applicant to file its Appeal out of time in respect to Nakuru Chief Magistrate Elc Case No.73 of 2018 (JUstus Letio Sambu V John Wachira Mugo And Elijah Kipruto Kimosop).3.That costs of the Application be in the cause. 2.The Application was based on grounds set out on the face of the application. It is supported by the affidavit of Justus Letio Sambu, the Applicant sworn on 12th February, 2026. 3.He stated that judgment had been delivered on 3rd December, 2025 which judgment was handwritten hence not readily available. 4.He further stated that despite numerous follow ups at the registry, the typed judgment was not availed in time nor uploaded in the CTS. 5.He stated that by the time they obtained a copy of the judgment and upon being dissatisfied with the findings, the statutory period for filing an appeal had already lapsed. 6.He further stated that the appeal raises serious issues of law and facts and unless the court grants him leave, he stood to suffer irreparable harm as he would lose his property. 7.He added that the Respondents shall not suffer any prejudice should the orders sought be granted. 8.In conclusion, he urged the court to allow the application as prayed. Response 9.The Respondents through their advocate, Githui John filed his replying affidavit sworn on 5th March, 2025 where he averred that the delay in filing the instant application was almost three (3) months thus inordinate. 10.He further averred that the typed judgment was available in the court file immediately after delivery of judgment. 11.He added that failure by the Applicant to file the appeal has not been explained and constitutes unexplained delay. 12.He urged the court to dismiss the application with costs. Submissions 13.Counsel for the Applicant filed his submissions dated 27th April, 2026 where he identified one issue for determination, whether this honourable court ought to grant leave and extend time to the Applicant to file his appeal out of time. 14.On the first issue, he relied on Section 95 and 79G of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules and Section 16A (2) of the Environment and Land Court Act 15.It was his submission that the delay in filing the appeal was not deliberate but occasioned by the delay in obtaining the judgment. He relied on the case of Thuita Mwangi V Kenya Airways Ltd [2003] KECA 201 (KLR) which cited with approval the case of Samuel Mwaura Muthumbi V Josephine Wanjiru Ngugi & Another [2018] eKLR. 16.He submitted that on the period of delay, the Applicant was only able to obtain an unsigned copy of the judgment on 12th February, 2026 after persistent follow ups at the registry. 17.He further submitted that the present application was filed on the same day being approximately 2 months after delivery of the judgment. 18.He submitted that the delay was reasonable and urged the court to find so. 19.On the reason for the delay, he submitted that on 3rd December, 2025 the judgment was delivered virtually and a hard copy was neither upload in the CTS nor availed to the Applicant. 20.He submitted that despite persistent follow ups at the court registry they obtained an unsigned copy on 12th February, 2026. He added that the delay was mot deliberate but occasioned by circumstances beyond the Applicant’s control. 21.On whether the appeal was arguable, it was counsel’s submission that the draft memorandum of appeal confirmed that the intended appeal is arguable with weighty grounds. 22.He submitted that the trial magistrate failed in upholding the doctrine of indefeasibility of title under the Land Registration Act. He added that the matter involves a substantial proprietary claim which would only be fair and just that the Applicant is granted an opportunity to be heard on merit. 23.Counsel submitted that the Respondents will suffer no prejudice is the extension of time is granted to the Applicant. He added that any inconvenience caused by the extension of time can be adequately compensated by an award of costs. 24.In conclusion, he submitted that the Applicant has satisfied that the factors to be considered in granting of leave to appeal out of time. He urged the court to allow the application as prayed. 25.Counsel for the Respondent filed his submissions dated 7th May, 2026 where he relied on the case of Andrew Kiplagat Chemaringo V Paul Kipkorir Kibet [2018] eKLR and Bartilol & 3 Others V Bartilot & Another (Civil Application 001 of 2024) [2024] KECA 607 (KLR) 26.He submitted that judgment was delivered on 3rd December, 2025 and argued that the claim by the Applicant that a hard copy was not available was inaccurate. 27.He relied on Section 79G of the Civil Procedure Act and submitted that a delay of over three months from the delivery of judgment to the filing of the application was inordinate. 28.He further submitted that the explanation given by the Applicant that he could not obtain a copy of the judgment does not amount to sufficient cause since it has always been available in the court record. 29.He added that lack of diligence and failure to follow up on the status of the matter does not constitute sufficient cause. 30.It was counsel’s submission that timelines within which appeals ought to be filed was integral in dispensation of justice. He submitted that the Applicant was not deserving of the court’s discretion. 31.In conclusion, he urged the court to dismiss the application with costs. Analysis And Determination 32.I have considered the application, the affidavit in support, the replying affidavit and submissions. The main issue for determination is whether the Applicant should be granted leave to file an appeal out of time. 33.Section 79G of the Civil Procedure Act provides as follows:“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.” 34.In the instant case, it is not in dispute that judgment was delivered on 3rd December, 2025. It is trite law that the Applicant had 30 days within which to file an appeal. It was however the Applicant’s claim that delay was occasioned at the court registry since he had requested for the typed judgment in vain. 35.He claimed that it was only after persistent requests that he got the unsigned judgment on 12th February, 2026 and thereafter filed the present application. 36.The Respondents on the other hand contend that the delay was inordinate and that the reason for the delay did not amount to good and sufficient cause to warrant the court’s discretion to grant him leave to appeal out of time. 37.It is trite law that this court has the discretion to extend time which ought to be exercised within the principles of the law. In the Court of Appeal case of Omar Shurie V Marian Rashe Yafar (Civil Application No. 107 of 2020) UR the court held as follows:“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.” 38.It is a fact that the time lapsed between the date of the judgment and the date of filing this application was approximately two months. It is this court’s view that the delay was not inordinate. 39.This court has taken the liberty to peruse the court record and it is not in dispute that the Applicant has annexed a draft memorandum of appeal. I am alive to the fact that the court in exercising its discretion whether or not to extend time to appeal of out time, it needs to be satisfied that the appeal is arguable. 40.It is my opinion that being that the subject matter being land which is emotive in nature, it will be in the interest of justice that the same be heard on merit. It is also my opinion that no prejudice incapable of being compensated by costs will be occasioned on the Respondents if the instant application is allowed. 41.The upshot of the foregoing is that the application dated 12th February, 2026 is allowed in the following terms:a.The Applicant is granted leave to file an appeal out of time against the judgment in Nakuru CMELC No. E073 of 2018 delivered on 3rd December, 2025.b.That the memorandum of Appeal be filed, and served within 14 days.c.The Applicant shall compile, file and serve a record of appeal within sixty (60) days and move the Court appropriately towards the finalization of this Appeal.d.The costs of this application shall abide the outcome of the appeal. 42.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 2ND DAY OF JULY 2026.L KOMINGOIJUDGEIn Presence Of:-Ms. Moraa for Ms Cheloti for the ApplicantNo appearance for the RespondentCourt Assistant : Irene/ Derrick