https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3802

Kabuu v Gacheche (Environment and Land Miscellaneous Case E066 of 2025) [2026] KEELC 3802 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3802 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Miscellaneous Case E066 of 2025 FM Njoroge, J June 18, 2026 Between Peter Kamau Kabuu Appellant and Naomi Ruguru Gacheche Respondent Ruling Application 1.The Notice of Motion dated 27th November 2025 seeks Orders of extension of time to file a Notice of Appeal out of time against the judgment and decree of the lower court; that the Notice of Appeal annexed to the application be deemed as properly served upon payment of the requisite fees; that an order of status quo do issue pending hearing and determination of the appeal. The application is supported by the sworn affidavit of the Sirya G. Kiponda, Advocate, which is undated. 2.The grounds upon which the application is made are that the applicant intends to appeal against the judgment from the lower court and that, having an arguable appeal, he is ready to abide by any conditions imposed by the court; that judgment was delivered in Mpeketoni ELC Case No E016 of 2021 on 12/3/2025 and the applicant instructed his present advocate to appeal on 5/11/2025; that the application has been made without unreasonable delay. It is also stated that the respondent stands to suffer no prejudice if the orders sought are granted. Response 3.The respondent filed a replying affidavit dated 25th March 2026 in which he deponed that the parties were informed of the right to appeal on 12th March 2025, and the statutory period within which to appeal expired on 11th April 2025, yet the applicant took no steps to file an appeal within that time; that the present application was filed after the deadline and that the delay is inordinate and it has not been reasonable explained by the applicant. She further depones that there is no explanation for what the applicant was doing between March and November 2025; that the application has been prompted by the impending execution proceedings evidence by the notice to show cause, that the granting of the orders sought would greatly prejudice the respondent since she had obtained a lawful judgment of which he is entitled to enjoy the fruits, including costs and damages, and any further delay would be an injustice against her yet the applicant would suffer no irreparable prejudice if the application is denied. 4.Applicant’s Submissions 5.The applicant filed submissions dated 5th May 2026 in support of the application and identified two issues for determination as follows:a.Whether the applicant has met the threshold for Grant of stay of execution;b.Whether the court should grant the applicant live to appeal out of time. 6.Counsel for the applicant addressed the issues together and relied on the provisions of Order 42 Rule 6 of the Civil Procedure Rules; he also relied on Antoine Ndiaye Versus African Virtual University 2015 eKLR. It was submitted that if the judgment is executed as it is the applicant would lose his right to appeal and would thus suffer substantial loss. It was urged that the respondent has moved to execute the degree by taking out a Notice to Show Cause dated 26th November 2025, and therefore the appeal might be also rendered nugatory. Counsel cited the case of Jaber Mohsen Ali And Another Versus Priscilla Boit & Another ELC Number 200 Of 2012 (2014) eKLR and urged that from the record, it is evident that after the court declared itself in the matter, the file was not immediately closed as several applications were instituted on the same file, including but not limited to the Notice To Show Cause application that had the applicant arrested and held in custody, and an application by a Third Party to be enjoined as an interested party thereon, all of which shocked the applicant both physical economically and mentally; that at that time, the applicant was represented by counsel who assured him that he would secure his legal rights in the process, and that the applicant had no reasons to doubt him; that the applicant was subsequently shocked to realize that that erstwhile counsel had not taken any steps to institute an appeal against the decree; thus he instructed the current advocates on 5th November 2025, who filed the Notice Of Appeal on the same date, and the present application on 8th December 2025. The delay is therefore admitted, but it is denied that it is so inordinate in the circumstances as to deny the applicant an opportunity to ventilate his grievance is in an appeal to this court. Counsel urged the court to grant the application. Respondent’s Submissions 7.The respondent filed submissions dated 1st April 2026. 8.Counsel for the respondent gave the facts of the case before the Principal Magistrates court at Mpeketoni and framed the sole issue for determination as being whether the application dated 8th December 2025 is merited. 9.Counsel submitted that the application is fundamentally flawed, lacks merit and constitutes an abuse of the court process and cited the case of Chase Bank Limited Versus Morven Developers Limited Civil Appeal E552 Of 2025 (2026) KECA 138 (KLR) and Salat Versus Independent Electoral And Boundaries Commission And 7 Others Application Number 16 Of 2014 2014 KESC 12 KLR and urged that the discretion of the court must be exercised judiciously as emphasized by the Court Of Appeal in Fakir Mohamed Versus Joseph Mugambi And Two Others 2005 eKLR, with the court taking into consideration the length of the delay the reason for the delay and the chances of the appeal succeeding if the application is granted, as well as the degree of prejudice to the respondent if the application is granted. 10.Also, citing Utalii Transport Company Limited and Others Versus NIC Bank Limited And Another 2014 KEHC 7255 KLR for the principles on the principles regarding the determination of what constitutes inordinate delay, counsel submitted that the delay in the present case was inordinate, and that the explanation given for the delay is not only insufficient but "demonstrably disingenuous"; that he who comes to equity must come with clean hands; that delay defeats equity; that there is no proper account of what the applicant was doing during the period March 2025 to November 2025, and thus no demonstration of due diligence in the pursuit of his legal remedies; that the application betrays a pattern of indolence that this court should not countenance, yet a party who seeks the equitable remedy of extension of time must lay a proper basis for the exercise of the court's discretion. He accused the applicant of having slumbered for 7 months without instructing counsel, and stated that this court should not rescue him from the consequences of his own indolence, which had worn the respondent’s patience thin. 11.Regarding the chances of the appeal succeeding, it was submitted that the applicant has not even presented a Draft Memorandum of Appeal to this court, and the document annexed to the application is a mere Notice of Appeal, document that is not the instrument for instituting an appeal from the subordinate court to the ELC. The absence of the Draft Memorandum of Appeal leaves this court in the dark as to whether the intended appeal has any arguable grounds. The case of Mbarire Versus Kenya Airways Limited Civil Application Number E383 Of 2025 2026 KECA 104 KLR was cited as having declined to grant an application for extension of time on account of inordinate and unexplained delay. 12.Regarding prejudice to the respondent, it was stated that the judgment obtained was lawful and that a stay of execution of 45 days was granted by the trial Court, and that the respondent is entitled to enjoy the fruits of a judgment. The case of Mbarire Versus Kenya Airways Limited Civil Application Number E383 Of 2025 2026 KECA 104 KLR was cited as having declined the revival of an applicant’s claim at a point where closure was reasonably anticipated with the observation that search revival would be prejudicial to the respondent by protracting the litigation, and this court was urged to follow that line of thought. 13.The conduct of the applicant was also criticized as motivated by an attempt to escape the consequences of the judgment in that he brought the application after the respondent had commenced execution proceedings that is after the issues of the Notice to Show Cause. 14.It was finally submitted that the power to grant stay pending appeal is exercisable only where there is a validly filed appeal, and that an application for stay that is predicated on an application for extension of time stands or falls with the application for extension; that since the respondent has demonstrated that the application for extension lacks merit, the prayer for stay of execution must likewise fail; that in any event, the applicant has failed to demonstrate substantial loss. Counsel submitted that this court should be the guardian not only of substantive justice, but also of the discipline that underpins it; that to grant the present application would be to reward slumber while penalizing vigilance. Analysis And Determination. 15.There are several issues that arise for determination in the present application as follows:a.Whether there the application is merited;b.Who ought to pay the costs? 16.The court in Mbarire Versus Kenya Airways Limited Civil Application Number E383 Of 2025 2026 KECA 104 KLR reiterated the principles that guide the Court in the exercise of its discretion in extension of time as set out in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others, Supreme Court of Kenya Application No. 16 of 2014, as follows:“ 1.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2.A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court’ 3.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; 4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5.Whether there will be any prejudice suffered by the respondents if the extension is granted; 6.Whether the application has been brought without undue delay; and 7.Whether in certain cases, like election petition, public interest should be a consideration for extending time.” 17.First, and on a preliminary basis, the Notice of Motion is not brought under any procedural law, so it can not be known under what provisions the applicant intended to seek the orders that he now seeks. 18.Secondly, in the present application, there is no proper explanation for the delay in lodging the appeal the present application. The applicant simply heaps blame on his erstwhile advocates. His erstwhile advocates are not present to defend themselves. This court finds it strange that for 8 months, the applicant’s advocates would receive instructions to file an appeal and simply remain inert in that regard while pursuing other applications before court. 19.In Mwangi & another v Gachago (Civil Appeal E117 of 2025) [2026] KEHC 1140 (KLR) (22 January 2026) (Ruling) the court declined to grant an extension of time to lodge an appeal even where the applicant blamed his advocate for the delay. The court stated as follows:“The only reason given for delay in filing the appeal was that the applicant’s case in the lower court was being handled by Kimondo Gachoka & Co. Advocates who did not brief him of the progress and in particular, that judgment had been delivered. He learnt of it late and instructed the firm of Githinji Mwangi and Associates who are on record for him in this matter. The time to file the appeal had already lapsed.It is noted that the applicant’s reasons for delay are not persuasive in that his advocate and himself ought to have followed up their case up to the very end but they failed to do so. No sufficient or cogent reason has been given to justify this court to exercise its discretion in the applicant’s favour and as such, the prayer for extension of time to appeal fails.” 20.The application ought to fail due to inordinate delay. 21.Thirdly, filing an appeal from the decision of the subordinate court required only grounds of appeal to be placed in a Memorandum of Appeal and that such Memorandum be instantly lodged which was not done within 30 days as required by the law. Further, even as at today, no Memorandum of Appeal has been lodged. Only a Notice of Appeal. A Notice of Appeal is not the requisite document for the lodging of an appeal from a decision of the lower court to the ELC. To file a notice of appeal is a superfluous action. All that is needed is the Memorandum. There is thus not any appeal, even an improperly filed one, before me. There is no draft Memorandum of Appeal exhibited to show the proposed appeal grounds. In Mwangi & another v Gachago (Civil Appeal E117 of 2025) [2026] KEHC 1140 (KLR) (22 January 2026) (Ruling) cited above, the dismissal of the application for extension of time was made in a case where a Memorandum of Appeal appears to have been lodged. This court can not decipher from a mere Notice of Appeal, as it would from a Memorandum of Appeal, as to whether an appeal raises arguable grounds. Besides, no other documents that would appropriately inform the court as to the reasoning of the lower court were included in the present application. 22.Fourthly, I find that the grant of the orders sought would greatly prejudice the respondent who has been expectantly waiting to enjoy the fruits of her judgment. 23.It will not do for the applicant to blame his advocate and also give the excuse that he was suffering from mental, physical and economic shock by reason of the decision of the court when all needed was the filing of a Memorandum of Appeal. The plea for extension must be declined. 24.The consequence of the foregoing findings regarding extension of time to appeal is that the prayer seeking the maintenance of status quo can not be granted. 25.The application dated 27th November 2025 lacks merit and it is hereby dismissed with costs to the respondent. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 18TH DAY OF JUNE, 2026.MWANGI NJOROGEJUDGE, ELC, MALINDI.