https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4601

Kimani v County Executive Member-Lands, Housing, Physical Planning and Urbanization & another (Environment and Land Petition 4 of 2019) [2026] KEELC 4601 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4601 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Petition 4 of 2019 EK Makori, J July 2, 2026 Between Nancy Wangari Kimani Petitioner and County Executive Member-Lands, Housing, Physical Planning and Urbanization 1st Respondent County Government of Nyeri 2nd Respondent Ruling 1.The Applicants, who were the Respondents in this suit, filed an application dated 24th May 2024 seeking the following orders:a.This Honorable Court be pleased to grant the respondents/applicants leave to appeal out of time from the judgment and decree of the court entered on October 19, 2023.b.Spent.c.Pending the hearing and determination of the intended appeal, this Honorable Court be pleased to stay the execution of the judgment of Honorable Justice J.O Olola delivered on 19th October, 2023 and the consequential decree arising therefrom.d.The costs of this Application be in the cause. 2.The Application is supported by the affidavit of Charles Njenga, Advocate for the Applicants, who deposed that the court delivered a judgment and decree in favor of the petitioner against the respondents/applicants on October 19, 2023, awarding, inter alia, a decretal sum of Kshs. 3,576,820/= (special damages of Kshs. 1,576,820/- and general damages of Kshs. 2,000,000/-) together with costs in the absence of the respondents. 3.The Respondents/Applicants, aggrieved by the said judgment and decree, intend to file a notice of appeal against the said judgment and decree, but they are now out of time to do so. 4.It is deposed that if the orders sought are not granted, the respondents/applicants shall suffer irreparable and substantial loss, as the petitioner/respondent shall proceed to execute the decree. 5.The Applicants argue that the intended appeal raises serious triable issues and has a high likelihood of success, and that the Applicants are willing to comply with any order or directions that this Honor Court may grant or deem fit as a condition for a stay pending appeal. 6.They also argue that the Respondent herein will not be prejudiced in any way if the orders sought in this application are granted. The Respondent’s Replying Affidavit 7.Learned counsel Issac Kimondo, Advocate, acting on behalf of the Respondent herein, who was the Petitioner in the suit, swore an affidavit in reply to the instant application on August 21, 2024. 8.He stated that on April 19, 2023, in the presence of both parties in court, the court directed that the judgment be delivered on September 28, 2023. Both parties were present in court that day when the court informed them that the judgment was not yet ready and would be delivered on October 19, 2023, which is the date the judgment was delivered, with full knowledge of the applicants. 9.It was highlighted that a copy of the judgment was served upon the applicant by the respondent in this matter via email on November 14, a month after delivery. The applicant took no steps to show dissatisfaction for almost 8 months before making the instant application, a delay the respondents deem inordinate, for which the court's discretion ought not to be exercised. Further, the explanation for the delay given by the applicant is neither reasonable nor plausible and amounts to false information. 10.It is also deposed that during the pendency of the Petition, the Applicant herein chose not to respond to the amended petition and refused to file written submissions. For that reason, the contested decree was never opposed, as the main intention was to delay the court's final decision as long as possible. 11.It is contended that it is evident that the applicant has no explanation for failing to file its appeal within the prescribed timelines, that the intended appeal is not arguable, and that the appellant has not annexed any draft Memorandum of Appeal to the instant application for the Court to assess its arguability 12.Regarding the prayer for a stay, the Respondent argues that there is no evidence that the appeal would be rendered nugatory if a stay is not granted. They pray that the instant application be dismissed for lack of merit. 13.The Applicants did not file their written submissions The Respondent’s Written Submissions 14.Counsel for the Respondent submitted that to appeal a High Court decision in Kenya, one must file a Notice of Appeal within 14 days of the Judgment or Ruling. This must be followed by a Memorandum of Appeal, which details the grounds of appeal, filed with the Court of Appeal within 30 days of filing the Notice of Appeal. One must then serve the Notice of Appeal and Memorandum of Appeal on all directly affected parties and prepare the Record of Appeal for submission to the Appellate Court. These time limits are mandatory. 15.They note that the judgment was delivered on October 19, 2023, and that the Notice of Appeal was filed in court at the end of May 2024, resulting in a delay of almost eight months, which was inordinate and has not been satisfactorily explained by the applicants. 16.The Respondent contends that this application is frivolous and an abuse of court process, given that the judgment was delivered and no sufficient cause or plausible explanation was provided for failing to file the intended appeal within the prescribed timelines. As such, the application was an afterthought intended to misuse the judicial process and delay the execution of proceedings. They relied on the authorities of Nicholas Kiptoo Arap Salat vs. IEBC & 7 others [2014] eKLR and Paul Musili Wambua v Attorney General and 2 others [2015] eKLR. 17.It is thus submitted that the applicant has no reasonable explanation for the delay, as the delay has not been explained to the satisfaction of the Court. For that reason, it is the applicant's prayer that the application be dismissed with costs to the Respondent. Analysis and Determination 18.This suit was instituted by a petition dated 23rd October 2019, which was amended on 28th January 2022. In the amended Petition, the Petitioner averred that, by letter dated 3rd October 2019, the Respondents had temporarily suspended their approved development plan number 2019/282 until the issue of plot ownership of Nyeri/Municipality Block 1/1404 is determined, which they termed an illegal suspension. 19.Judgment was delivered by this Court on October 19, 2023, and entered in favor of the Petitioner, declaring that the Petitioner’s Constitutional rights under Articles 47 and 40 had been violated by the Respondents, nullifying the letter dated October 4, 2019, and issuing a permanent injunction restraining the Respondents from interfering with the Petitioner’s quiet enjoyment of the suit property. 20.Further, the Court awards special damages of Kshs.1,576,820/= and general damages of Kshs.2,000,000/= to the Petitioner against the Respondents. 21.The Respondents herein now seek to file an appeal out of time through this application. Rule 61 of the Court of Appeal Rules requires anyone intending to appeal to the Court of Appeal to file a Notice of Appeal within 14 days of the decision they intend to appeal. I quote the provision below:“A person who desires to appeal to the Court shall give notice in writing, which shall be lodged in six copies with the registrar of the superior Court at the place where the decision against which it is desired to appeal was given, within fourteen days after the date of that decision, and the notice of appeal shall institute the appeal.” 22.Rule 64(5)(a) further provides that:“Notwithstanding subrule (1), the registrar of the superior court shall not prepare the record of appeal where—(a)the notice of appeal has been lodged out of time, until the registrar has been notified that the time has been extended by order of the superior court or of the Court or the President otherwise directs.” 23.There is provision to extend the time to file the Notice of Appeal under Section 7 of the Appellate Jurisdiction Act Cap 9, which provides as follows:“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.” 24.A significant amount of time has passed since this Court rendered its judgment on October 19, 2023, to the time of the Applicant filing the application dated May 29, 2024, as per the CTS system. 25.The Respondent relied on the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others, Sup Ct. Application 16 of 2014, which both parties cited and relied upon to establish the principles to be applied in exercising the discretionary power to extend time:“Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis [for] where they seek [grant of it.……. The Court further decided that:“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the exercise of such discretion: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 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.where there is [good] 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; and7.whether in certain cases, like election petitions, the public interest should be a consideration for extending time.” 26.Further, the Court of Appeal in the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 laid down the parameters for the extension of time 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.” This was reiterated by Odek, JJ.A in Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR, as,“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...” 27.The Applicant has not provided sufficient reason for seeking an extension of time, other than stating that they were not present when judgment was delivered. I note from the proceedings that Judgment in this matter was initially scheduled to be delivered on the 28th of September 2023 and was ultimately delivered on the 19th of October 2023, after all parties were notified. 28.There is also evidence in the Respondent’s reply affidavit that they served the Applicant with a copy of the judgment and demand letter on November 14, 2023, which means that by that time the Applicant was aware of the judgment, yet filed this application 7 months later. 29.Further, I note that the Applicant has not attached a draft Memorandum of Appeal to their application, which this Court would assess to determine whether they have an arguable appeal. 30.Thus, the application has not met the threshold for the grant of an extension of time established by the precedents of the Nicholas Kiptoo and Leo Sila Mutiso cases (Supra) and is without merit. 31.The application dated May 24, 2024, is hereby dismissed with costs. DATED, SIGNED, AND DELIVERED VIRTUALLY IN NYERI ON THIS 2ND DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Kimondo for the PetitionerDenis - Court AssistantMKN & Co. Advocates for the Respondents