https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3715

Karema & another v Kamaru & another (Environment and Land Miscellaneous Case E016 of 2025) [2026] KEELC 3715 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3715 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Miscellaneous Case E016 of 2025 MN Gicheru, J June 18, 2026 Between Kenyan Macharia Karema 1st Appellant Brilliant Ventures Ltd 2nd Appellant and Aliason Wacheke Kamaru 1st Respondent Anthony Michori Kamaru 2nd Respondent Ruling 1.This ruling is on the notice of motion dated 14-7-2025. The motion which is by the applicants is brought under order 50 rule 6 of the Civil Procedure Rules, section 95 of the Civil Procedure Act and any other enabling provisions of the law.The motion seeks the following residual orders.(a)The applicant be granted leave to file and serve appeal out of time.(c)Interim stay of execution of the judgment delivered on 29-12-2023 by Hon. S. Mwangi at Murang’a Chief Magistrate Court Case No. ELC 36 of 2019 be granted until the intended appeal is heard and determined.(d)Any other order this Court may deem fit to grant. 2.The motion is based on nine(9) grounds and it is supported by an affidavit by the 1st applicant dated 14-7-2025. The gist of the affidavit and the grounds is as follows. One, when the Judgment in the lower court was delivered on 29-12-2023, the 1st applicant was unwell and admitted to hospital. He was later discharged and advised to be on bed rest. Two, his counsel did not inform the 1st applicant in good time about the outcome of the case and by the time he did, time to appeal had lapsed. Three, the illness drained the applicant and his family emotionally and financially and it took time to comprehend the situation. The delay in filing the current application is not intentional. Four, the applicant is only seeking a chance to be heard and is ready to file and serve the appeal and abide with any conditions that the court may impose. Finally, the respondents have initiated the process of execution and served the appellants with a notification for sale and there is real danger of applicant’s land being sold to recover the decretal sum. 3.The motion is opposed by the respondents and the 1st respondent has sworn a replying affidavit dated 23-1-2026 in which it is replied as follows. Firstly, the judgment in favour of the respondents is for money had and received by the applicants for land which they did not transfer to the respondents. The judgments dated 29-12-2023 has never been challenged.The decree is one for money and not for land. Secondly, the property sought to be attached is in Machakos County and the Court lacks territorial jurisdiction. Thirdly, on 3-12-2024, the counsel for the applicant had promised to settle the decree in question but he did not keep his word. Fourthly, the applicants filed another appeal at the High Court in Murang’a being appeal No. EO16 of 2025 which has never been set down for hearing. Fifthly, the current application is an abuse of the court process.For the above and other reasons, the Respondents pray for the dismissal of the Applicants’ application. 4.Counsel for the parties filed written submissions dated 16-4-2026 and 22-5-2026. The issues for determination are identified as follows.(a)Whether this court should exercise its discretion to allow the application.(b)Whether the delay is inordinate.(c)Whether the reasons given for the delay are sufficient.(d)Whether the intended appeal is arguable.(e)Whether the intended appeal is an abuse of the court process. 5.I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit, the written submissions and the issues raised therein. I find as follows. In the case of Nicholas KK Salat v IEBC and 7 others, the Supreme Court of Kenya set out the following principles to be considered in a case such as this. They include-(i)Extension of time is not a right but an equitable remedy.(ii)The Applicant bears the burden of laying a basis for extension.(iii)The decision is discretionary and depends on the circumstances of each case.(iv)A reasonable explanation for the delay must be given.(v)The court should consider prejudice to the Respondent.(vi)The Application should be brought without undue delay.(vii)In appropriate cases, public interest may be relevant.Applying the above principles to this case, I find that the following issues arise.(a)Whether the application has been brought without undue delay.(b)Whether a good explanation has been given for the long delay.(c)Whether there are special circumstances in this case to warrant the grant of the orders sought.(d)Whether the Respondents will suffer prejudice if the application is allowed. 6.It is my finding that the application has been brought after a long delay. Under section 74G of the Civil Procedure Act all appeals from the lower court to the High Court must be filed within 30 days. In this case, the motion was filed on 15-7-2025 more than 18 months from the date of judgment dated 29-12-2023. 7.Regarding the second issue, I find that the applicants have not given a good explanation for the long delay. From the discharge summary dated 10-1-2024 it is clear that the 1st applicant was out of hospital for 18 months before he filed this application. This is a long time. In between there is evidence to show that he was making false promises to settle the matter in December 2024 and he was frustrating the Respondents in their effort to execute the decree by refusing them entry to his land for the purposes of valuation. A party who exhibits bad faith should not benefit from the courts discretion. He who seeks equity must do equity. The Applicants have not done equity. They do not therefore deserve equity. 8.Regarding the respondents suffering prejudice, I find that they will indeed suffer much prejudice. Since December 2023, they have been successful litigants in a case that has been pending in court since the year 2019. They lost their money and the land that they were to buy in June 2016, ten years ago. To subject them to fresh litigation is neither fair nor just especially after a hiatus of about 2 ½ years. 9.Finally on special circumstances that may warrant the grant of the orders sought, I find none to exist in this case. The applicants have not been able to demonstrate any special circumstances to warrant allowing their application. This being a money decree and the case having lasted for about seven(7) years, let the applicants settle the decree issued against them. 10.For the above stated reasons, I find no merit in the motion dated 14-7-2025 which I dismiss with costs to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 18TH DAY OF JUNE, 2026.M. N. GICHERUJUDGEDelivered online in the presence of; -Court Assistants – Antony.Applicant’s Counsel – Absent.Respondents, Counsel – Mr Arasa.