https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4428

Kasigau Ranching (DA) Company Ltd v Cabinet Secretary Ministry of Petroleum & Mining & 4 others (Environment and Land Case E010 of 2024) [2026] KEELC 4428 (KLR) (Environment and Land) (13 July 2026) (Ruling) Neutral citation: [2026] KEELC 4428 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Case E010 of 2024 JA Orwa, J July 13, 2026 Between Kasigau Ranching (DA) Company Limited Plaintiff and The Cabinet Secretary Ministry Of Petroleum & Mining 1st Defendant The Commissioner Of Mines And Geology 2nd Defendant The Attorney General 3rd Defendant Lilian Mercy Mutua t/A Lilian M Gems 4th Defendant and Elizabeth Wangechi Ngiloriti Interested Party Ruling 1.The Applicant/4th Defendant’s motion dated 23.3.2026 filed through the firm of khaminwa and khaminmwa Advocates on the 1.4.2026 though paid for on the 3.4.2026 seeks the following orders :IiPending the hearing and determination of this application, this Honourable Court be pleased to stay, suspend, or enlarge the time for compliance with Order(i)of the ruling delivered herein on the 6th day of March 2025 requiring the deposit of Kshs. 5,000,000/= as security.iiThis Honourable Court be pleased to review, vary and/or set aside that part of its ruling delivered on the 6th day of March 2025 requiring the 4th Defendant/Applicant to deposit Kshs. 5,000,000/= in a joint interestearning account within 30 days as a condition for stay pending appeal.iiiIn place of the said condition, this Honourable Court be pleased to order that:a)The Applicant do furnish such other reasonable and proportionate security as this Honourable Court may deem just; orb)In the alternative the Applicant do provide title security, bond, or other noncash security acceptable to the Court; orc)In the further alternative the amount of security be reduced to a fair, realistic, and proportionate sum to be determined by the Court.ivThis Honourable Court be pleased to enlarge the time within which the Applicant may comply with the terms of stay pending appeal.vcosts of this application be in the cause 2.The Application is brought pursuant to 1A, 1B, 3A, 63(e), 80 of the Civil Procedure Act, Order 45 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules 2010 and other enabling provisions of the law. 3.The Application is premised on the grounds set out on face of the record and supported by the Affidavit of Lilian Mercy Mutua, sworn on 23rd March 2026. 4.The Applicant deposed that she has been denied access to the suit property where the bulk of her valuable proprieties are situate inclusive of gemstones. 5.The Applicant contended that she is financially unable to raise the sum of kshs 5,000,000/= for deposit in court as security for courts in compliance with the order dated 6.3.2025 by virtue of being denied access to her properties constructed on the suit property. 6.The Applicant /4th Defendant contended that the order to deposit kshs 5,000.000/ is oppressive , onerus, and disproportionate hence defeats the very stay of execution granted. 7.The Applicant deposed further that she is likely to suffer irreparable loss should the application be disallowed . further that no prejudice will be suffered by the respondent should the application be allowed. 8.The Respondent/Plaintiff opposed the Application vide a replying affidavit sworn by Allen Ngundo Mwakesi on the 26th June 2026, who deposed that the Application is misconceived, incompetent, bad in law and devoid of merit as it fails to satisfy the legal threshold for review, variation or setting aside of the Court's ruling dated 6.3.2025 hence prayed for dismissal of the Application with costs. 9.The Application was directed to be disposed of by way of written submissions but none of the learned counsels complied as at the time the court settled down to write the ruling. 10.The Applicant is basically calling upon the court to vary its orders dated 6.3.2025 directing the Applicant to deposit kshs 5000,000/= as security for costs pending hearing of the appeal and be allowed to provide alternative security in the form of title security, bond or noncash security acceptable to the court but amenable to terms dictated by the court. Analysis and determination: 11.The Affidavit evidence on record depicts the issues for determination as follows:i.Whether time should be enlarged for filing security or alternate security by the Applicant.ii.Whether Application is filed without inordinate delay.iii.Whether Applicant has shown sufficient cause for the delay.iv.Whether there will be any prejudice suffered by the respondents if the extension is granted.v.Whether the Applicant has satisfied the grounds for review of an order/ruling.vi.Who is to pay costs of the Application. 12.The court order sought for extension of time and review as per the ruling dated 6.3.2025 provides as follows:i)An order staying the execution of the judgment and decree delivered on 2nd October 2024 is hereby granted pending the hearing and determination of the appeal on condition that the Applicant herein Lilian Mercy Mutua t/a Lilian M. Gems do deposit a sum of Kshs. 5,000,000/= as security in a joint interest earning account of the Plaintiffs and 4th Defendants Advocates within 30 days from today.ii)Failure to comply with Order (i) above the stay so granted shall automatically lapse.iii)Costs of the application to abide the outcome of the appeal.” 13.It is on record that the order dated 6.3.2025 traces its history from the Judgement /decree of the court dated 2.10.2024 in Mombasa elc No 159 of 2019 as consolidated vide Ruling of 17th June, 2020 in Misc. Appl No. 4 of 2020 as restated in the ruling herein of 13th January 2021 with Voi ELC No. 11 of 2019 and Voi ELC No. 16 of 2018 where judgement was entered in favour of Respondent as follows:A declaration is hereby issued that the mining permit registration number MP/2018/0113 was illegally issued to the 4th Defendant.b.An order of cancellation of mining permit registration number MP/2018/0113 dated 7th November 2018 is hereby issued.c.A declaration is hereby issued that the 4th Defendant is a trespasser on Land Parcel LR No. 12180 and Mining Location Reference No. 149/110 Machungwa “A” Kasigau Ranch. The 4th Defendant shall vacate and give vacant possession to the Plaintiff within ninety (90) days, in default of which eviction orders shall issue.d.The Plaintiff is awarded general damages of Kshs. 5,000,000/=, to be paid by the Defendants jointly and severally.e.The Plaintiff is also awarded exemplary damages of Kshs. 10,000,000/=, to be paid by the Defendants jointly and severally.f.The Plaintiff is awarded restoration and conservation damages of Kshs. 13,000,000/= against the 4th Defendant, to be used in the rehabilitation, restoration and decommissioning of the mining location No. 149/110 Machungwa "A" Kasigau Ranch, under the supervision of the National Environment and Management Authority.g.The costs of the suit are awarded to the Plaintiff as against the Defendants, jointly and severally.” 14.The order issued on 6.3.2025 was expected to lapse on the 5.4.2025.The Applicant filed the Application dated 23.3.2026 on the 1.4.2026 under certificate of urgency though paid for it on 3.4.2026 . As at 1.4.2026 or 3.4.2026 almost 12 months had lapsed so to the order sought to be extended 15.Section 1A, 3A, 95 of the Civil Procedure Act 2010 and rule 50 of the Civil Procedure Rules 2010 mandate courts of law to exercise the inherent discretion to enlarge time for compliance by a party where the set timelines has lapsed which discretion should be exercised judiciously and in conformity with the litigant’s expectation that justice shall be administered in a just, expeditious, proportionate and affordable resolution of disputes. 16.Section 1A of the Civil Procedure Act 2010 provides for the overriding objective of this Act and the rules made hereunder to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by thee Act. 17.Section 3A of the Civil procedure Act ,2010 provides that ‘Nothing in this act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 18.Section 95 of the Civil Procedure Act 2010 provides for enlargement of time to the extent that “Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.” 19..Order 50 rule 6 of civil procedure rules,2010 provides as follows“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 20.It is trite from the cited statutory provisions that extension of time to perform an act beyond the set timelines is an equitable remedy available to a deserving party subject to proof of the principles as laid down by the supreme court in the case of Nick Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) as follows:i.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;ii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.Whether there is a reasonable reason for the delay which ought to be explained to the satisfaction of the court;v.there will be any prejudice suffered by the respondents if the extension is granted;vi.the application has been brought without undue delayvii.in certain cases, like election petitions, public interest should be a consideration for extending. 21.The Applicant is entitled to enlargement of time to deposit the alternate security out of time subject to proof that the application is filed without inordinate delay, there is a reasonable cause warranting delay and no prejudice shall be occasioned to the Respondent should extension of time be granted. Whether the Application is filed without any 22.Whether the application is filed without any inordinate delay: 23.The Applicant /4th Defendant filed the application dated 23.3.2026 on 3.4.2026 after lapse of 365 days from 6.3.2025 hence guilty of inordinate delay in filing the application dated 23.3.2026. 24.Whether reasonable explanation has been offered by Applicant: 25.The Applicant in her affidavit dated 23.3.2026 averred that she suffered financial inability to pay kshs5000,000/=as security for due performance of the decree as she has no access to the suit property where her premises in which her valuable properties have been locked since 2.10.2024 .Further that the order requiring her to deposit kshs 5000, 000/= in court as security for costs is onerous ,excessive and disproportionate hence defeating the stay granted. The Affidavit evidence of Applicant on record shows that Applicant’s financial inability to comply with the court order dated 6.3.2025 commenced from 2.10.2024 . The order sought for review and enlargement of time was issued on 6.3.2025 when Applicant was aware of her financial inability to comply with the terms set therein. From 6.3.2025 up to 23.3.2026, The Applicant has been aware of the consequences of noncompliance with the terms of decree and order dated 2.10.2024 and 6.3.2025 respectively . consequently the applicant would have moved the couert within reasonable time for variation of the terms of order dated 6.3.2025 which she failed to do. Vis avis her financial inability to deposit kshs 5000,0000/= as 6.3.2025.Consequently the Applicant would have moved the court within reasonable time for variation of the terms of order dated 6.3.3025 .At close of hearing of the application via affidavit evidence I find no reasonable cause shown by Applicant as to why the application was not filed on time. On account of the order being onerus, excessive and disproportionate the Applicant was aware of the contents and consequences of noncompliance with the order dated 6.3.2025 and if dissatisfied with the terms set for depositing security sum in court would have moved the court within reasonable time for extension and or review of the terms thereof or appeal. 26.On account of the order being onerus, excessive and disproportionate , the Applicant if dissatisfied with the terms set for depositing security sum in court would have moved the court within reasonable time for extension and/ or review of the terms thereof or appeal the ruling. In the circumstances I find no reasonable explanation offered by Applicant for filing the Application out of time to warrant exercise of the court’s unfettered discretion in her favour. 27.Whether there will be any prejudice suffered by the Respondent if the extension is granted;It is the legitimate expectation of a litigant that justice shall be administered in an affordable,proportionate,efficient manner as provided in section 1A of the Civil Procedure Act,2010 . It is the duty of the court , in exercising its judicial authority, pursuant to section 1B of the Civil Procedure Act,2010 to ensure timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties which is replicated in Article 159 (2)( b) of the constitution of Kenya, 2010 that provides for timely disposal of judicial process when balancing the wheels of justice between the Applicant and Respondent who are entitled to an expeditious disposal of proceedings. The court in excising its unfettered discretion is reminded to act judiciously as restated in the case of Rainbow Acres Limited v Nic Bank Limited [2015] KEHC 1965 (KLR). The Applicant despite being aware of the consequences of failing to comply with the order dated 6.3.2025 waited until 3.4.3026 that she filed the motion dated 23.3.2026 seeking to vary and /or review the terms of the security to be deposited in court which I find as an abuse of the due process of the court as the application was filed after an inordinate delay of 365 days. Furthermore, no memorandum of appeal has been annexed by the Applicant/4th Defendant on record to show that it has been filed. In the circumstances it is the judgement creditor who will be prejudiced should time be extended in favour of the Applicant to deposit alternate security. 28.Whether Applicant has satisfied the grounds for review; 29.The Applicant /4th Defendant called for review of the order dated 6.3.2025 pursuant to order 45 of the civil procedure rules 2010 rules 2010 which provides as follows:(1)Any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb)by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed, or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay”. 30.The ruling or order dated 6.3.2025 emanated from the judgment of the court dated 2.10.2024 .The Applicant was privy to the contents of the judgment /decree and/order /ruling dated 2.10.2024 and 6.3.2025 respectively. aware of the judgment/decree dated 2.10.2024 and order 6.3.2025. I find that there is no discovery of new evidence presented before court by the Applicant which was not within her knowledge prior to 2.10.2024 or 6.3.2025 to warrant review of the order dated 6.3.2025 on discovery of new evidence. 31.As to an error apparent on the face of the record, a judgement or order of the court can be reviewed on account of typographical errors in terms of names of parties, place of suing, date of the decree /order pursuant to order 45 of civil procedure rules 2010(see above). The court delivered its judgement against the Applicant/4thDefendant on 2.10.2024 upon hearing all the parties to the suit on merit .The order dated 6.3.2025 was issued upon Applicant moving the court for stay of execution of the decree pending determination of the appeal and the court rendering its ruling/ order dated 6.3.2025 upon considering the affidavit evidence presented by parties before it hence find that there is no apparent error on the face of record warranting review of the order dated 6.3.2025. 32.On the issue of any other sufficient reason , the burden rests on the Applicant to show sufficient cause for granting the order in favour of the Applicant without compromising the rights of the judgment creditor to enjoyment of the fruits of his/its judgement as restated in the case of David and 2 other vs Bakaya (2025)eklr. The Applicant averred that she suffered financial inability that warranted noncompliance with court order dated 6.3.2025 directing her to deposit kshs 5,000,000/= as security for due performance of decree after entry of judgement against her on 2.10.2024. The Applicant would have moved the court immediately she noticed/detected her financial inability to comply with the order for appropriate remedy rather than waiting for a year to lapse to invoke the court’s discretion to be exercised in her favour. Furthermore, The Applicant has not annexed a copy of appeal to show that it has has been filed and pending hearing and determination . In the circumstances in absence of an appeal having been filed and pending hearing and determination , I find no sufficient cause provided by the Applicant to warrant review and/or varying the terms of security to be deposited in court by the Applicant/4th Defendant. 33.Who is to pay costs of the Application :Costs follow events pursuant to section 27 of the Civil Procedure Act ,2010. Having found the application dated 23.3.2026 devoid of merit , I order that the costs of the application shall be paid to the Respondent by the Applicant. Final orders: 34.Having considered the statutory provisions cited and affidavit evidence on record I find no merit in the application dated 23.3.2026 hence dismiss it with costs to the Respondent/Plaintiff. DELIVERED, DATED AND SIGNED IN OPEN COURT AT VOI THIS 13TH DAY OF JULY, 2026J. A. ORWAJUDGEIn the presence of :Mr Gesicho for the Respondent,Mr Wanjala for the ApplicantMr letisiah Court Assistant.