Kintet & another v Ole Kunguru & 2 others (Environment and Land Appeal Miscellaneous E024 of 2025) [2026] KEELC 4001 (KLR) (29 June 2026) (Ruling)

Kintet & another v Ole Kunguru & 2 others (Environment and Land Appeal Miscellaneous E024 of 2025) [2026] KEELC 4001 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 4001 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Appeal Miscellaneous E024 of 2025 LN Gacheru, J June 29, 2026 Between Olomoya Kintet 1st Appellant Siloma Partoip 2nd Appellant and Kayit Ole Kunguru 1st Respondent Benard Maina Thini 2nd Respondent County Government Of Narok 3rd Respondent Ruling 1.The matter is coming up for determination of the 1st and 2nd Appellants/Applicants’ Notice of Motion Application dated 24th Dec 2025, brought pursuant to Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution and all other enabling provisions of the law, where they sought the following orders:1.That the 1st and 2nd Appellants/Applicants herein be and are hereby granted leave to file and serve their appeal out of time2.That the draft Petition of Appeal annexed to the application be deemed as properly filed and served out of time.3.That pending the hearing and determination of the application, an injunction do issue restraining the 1st and 2nd Respondents, their agents, servants or any person acting on their behalf from selling, developing, alienating, transferring or in any other manner interfering with Plot No. 307 Block 4 and Plot No. 308 Block 4, Narok Town.4.That pending the hearing and determination of the intended appeal, a similar injunction do issue preserving the said properties.5.That the Court be pleased to issue such further orders as may be necessary in the interests of justice.6.That costs of the application be provided for. 2.The instant application is supported by the affidavit of Olomoya Kintet, the 1st Applicant, sworn on even date, and is based on the following grounds as set out on the face of the Application: 3.The Applicants averred that they were the Plaintiffs in Narok CMCC No. 57 of 2013, Olomoya Kintet & Another v Stanley Maleto & 2 Others, wherein judgment was delivered on 13th May 2025 dismissing their suit and allowing the 2nd Defendant’s counterclaim. 4.Being dissatisfied with the said judgment, they instructed the Law Firm of Ole Yenko & Co. Advocates to file an appeal together with an application for stay of execution, both of which were filed on 20th May 2025 and served upon the Respondents’ Advocates on 27th May 2025, well within the statutory time. 5.That the 2nd Respondent’s Advocate raised a Preliminary Objection challenging the competence of the appeal filed by the said advocates; that this Court, in its ruling delivered on 27th November 2025, upheld the Preliminary Objection resulting in the dismissal of the appeal; and that they were consequently advised that they would require leave of the Court to lodge a fresh appeal since the statutory period for filing an appeal had by then lapsed. 6.That unless leave is granted to file the appeal out of time, they will be denied an opportunity to challenge the judgment delivered by the trial court on 13th May 2025; that the intended appeal raises arguable and weighty issues of law and fact with high chances of success; and that the Respondents will not suffer any prejudice should the Court exercise its discretion in their favour. 7.The Applicants further averred that the delay in bringing the present application was neither deliberate nor inordinate, noting that they had previously filed and served an appeal and an application for stay of execution within time. They further contend that the earlier appeal was struck out on a technicality and not on the merits. They explain that owing to financial constraints they had initially instructed a different firm of advocates, but following the dismissal of the appeal they engaged their current advocates who advised them to seek leave to file a fresh appeal out of time. 8.With regard to the preservatory orders sought, the Applicants contend that the 2nd Respondent has commenced activities on the suit properties by moving construction workers and building materials onto the land; and that unless injunctive orders are granted, the Respondents may proceed with construction, alienation or other dealings in respect of Plot No. 307 Block 4 and Plot No. 308 Block 4, Narok Town, thereby rendering the intended appeal nugatory. 9.They further averred that the application has been brought in good faith, without undue delay, and in the interests of justice. 10.The instant application is opposed by the Replying Affidavit sworn by Kayit Ole Kunguru, the 1st Respondent, on 20th February 2026 in which he averred as follows: 11.That the judgment in Narok CMCC No. 57 of 2013, was lawfully delivered on 13th May 2025, dismissing the Applicants’ suit and declaring them trespassers and upholding that Plot No. 308 Block 4 belonged to him. 12.The 1st Respondent averred that although the Applicants had previously filed an appeal through the firm of Ole Yenko & Co. Advocates; that the same was struck out on 27th November 2025 following the successful Preliminary Objection raised by the Respondents; that the statutory period for filing a fresh appeal has since lapsed; and that the Applicants had not demonstrated sufficient cause to warrant extension of time. 13.Further that the Preliminary Objection was properly upheld and that the Applicants cannot use the present application to circumvent clear procedural requirements; that litigation must come to an end and the Applicants have already exercised their right of appeal, which appeal was struck out; and that the right of appeal is not perpetual and must be exercised within the timelines prescribed by law. 14.He further averred that the Applicants have not demonstrated any prejudice that they would be suffered if the application is declined; that the Applicants have never been in possession or occupation of Plot Nos. 307 and 308 and therefore cannot claim irreparable loss over land they neither own nor occupy. 15.He further averred that financial constraints or change of advocates cannot constitute sufficient grounds for extension of time, and that the lapse of statutory timelines cannot be cured by the appointment of a new advocate. 16.He further averred that the Draft Memo of Appeal annexed to the application cannot be deemed as properly filed in the absence of leave of the Court and that the intended appeal is incompetent and time-barred. He maintained that the issue before the Court concerns the expiry of statutory timelines and not the competence of the advocates presently acting for the Applicants. 17.With regard to the injunctive relief sought, the 1st Respondent avers that the orders sought are overtaken by events and incapable of enforcement; that he has been in lawful possession and occupation of Plot No. 308 Block 4, for many years and has already undertaken permanent developments thereon; and that restraining him from utilizing the property would unjustly deprive him of the fruits of a judgment already rendered in his favour. 18.That the Applicants have failed to demonstrate a prima facie case with any prospects of success and that the present application is merely an attempt to delay the execution of a valid judgment; and that the Applicants have filed multiple applications with the sole objective of frustrating the Respondents from enjoying the fruits of their judgment and that the application therefore amounts to an abuse of the court process. 19.He further averred that the Applicants have failed to satisfy the requirements for grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules, having failed to demonstrate substantial loss, promptitude in bringing the application, and provision of security for the due performance of the decree. 20.He also challenged the competency of the application on the basis that no written authority has been exhibited authorizing the 1st Applicant to swear the affidavit on behalf of the 2nd Applicant as required under Order 1 Rule 13 of the Civil Procedure Rules. 21.The 1st Respondent therefore urged the Court to find that the 1st instant Application is incompetent, frivolous, misconceived and an abuse of the court process and to dismiss the same with costs. 22.The application is further opposed by Benard Maina Thini vide his Replying Affidavit sworn on 20th February 2026 where he averred as follows: 23.That judgment in Narok CMCC No. 200 of 2013, which had been consolidated with Narok CMCC No. 57 of 2013, was delivered on 13th May 2025 in his favour and against the Applicants; and that the Applicants have merely outlined the chronology of events following the judgment and have failed to demonstrate any legal basis for the orders sought. 24.The 2nd Respondent averred that the Applicants had already exercised their right of appeal through an earlier appeal which was subsequently struck out for want of locus standi. He opposes the prayer for leave to file a fresh appeal out of time and maintains that the Applicants bear the burden of demonstrating good and sufficient cause for the delay, which burden they have failed to discharge. 25.That the Applicants have not furnished any reasonable or satisfactory explanation for their failure to file a competent appeal within the prescribed timelines; that the Applicants were at liberty to institute an appeal within time through their advocates on record but neglected to do so. He maintains that the delay in bringing the present application is inordinate, unexplained and inexcusable, rendering the application devoid of merit. 26.With regard to the injunctive relief sought, the 2nd Respondent averred that the Applicants have not satisfied the requirements for the grant of such; that they have failed to establish a prima facie case, substantial loss, or that the intended appeal would be rendered nugatory in the absence of the orders sought. 27.He further averred that the Applicants had not yet obtained leave to lodge the intended appeal and therefore could not seek preservatory orders founded upon an incompetent appeal. 28.The 2nd Respondent averred that the draft Memorandum of Appeal does not disclose any arguable grounds with reasonable prospects of success; that the Applicants’ case was riddled with contradictions during the trial, including inconsistencies regarding the alleged loss of an allotment letter and the status of developments on Plot No. 307 Block 4; and that the intended appeal is not arguable. 29.The 2nd Respondent further averred that there was no evidence demonstrating substantial loss or prejudice that would be suffered by the Applicants if the application is declined. 30.That although the right of appeal is recognized in law, it must be exercised within the timelines prescribed by statute, and that the Applicants had ample opportunity to lodge a competent appeal but failed to do so. 31.The 2nd Respondent contends that the present application is frivolous, vexatious and intended solely to delay his enjoyment of the fruits of the judgment delivered in his favour on 13th May 2025; and that the grant of the orders sought would occasion prejudice to him as the successful litigant. 32.The Application was canvassed by way of written submissions causing the Applicants to file their written submissions dated in which they raised the following issues for determination:i.Whether the application should be allowed.ii.Whether the Applicants have established a prima facie case to warrant injunctive relief.iii.Whether the Applicants stand to suffer irreparable harm if injunctive orders are not granted.iv.Whether the balance of convenience tilts in favour of granting injunctive orders.v.Who should bear the costs of the application. 33.On whether the application should be allowed, the Applicants submitted that they had demonstrated sufficient cause to warrant the grant of leave to file their appeal out of time under Section 79G of the Civil Procedure Act; that they had diligently lodged their appeal together with an application for stay within the prescribed time but that the appeal was struck out on 27th November 2025 following the upholding of a Preliminary Objection against their then advocates, Ole Yenko & Co. Advocates, without the merits of the appeal ever being considered; and that the delay was therefore occasioned by a procedural technicality rather than indolence on their part. 34.They further submitted that in exercising its discretion under Section 79G, the Court ought to be guided by the principles enunciated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where it was held that extension of time is an equitable and discretionary remedy to be granted upon consideration of, inter alia, the length of the delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice likely to be suffered by the respondent. 35.The Applicants further submitted that the delay was neither inordinate nor inexcusable, relying on Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] eKLR, where the Court of Appeal held that, in determining whether to extend time, the court ought to consider the length of the delay, the reasons for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent. They also cited Mwangi v Kenya Airways Ltd [2003] eKLR where it was held that courts should not sacrifice substantive justice at the altar of procedural technicalities. 36.It was their submission that the Respondents would suffer no prejudice if leave were granted whereas refusal to enlarge time would unjustly extinguish their constitutional right of appeal and their right of access to justice guaranteed under Articles 48 and 50 of the Constitution. 37.On whether the Applicants have established a prima facie case to warrant injunctive relief, the Applicants submitted that they had established a prima facie case with a probability of success; that the intended appeal raises serious and arguable issues concerning ownership of Plot Nos. 307 and 308 Block 4, Narok Township, particularly whether the trial court erred in holding that Plot No. 307 was situated on Plot No. 308 and thereby effectively altering the approved development plan. 38.They submitted that the applicable principles governing the grant of interlocutory injunctions were laid down in Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the Court held that an applicant must establish a prima facie case with a probability of success before an injunction can issue. 39.Further reliance was placed on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, where the Court of Appeal defined a prima facie case as one which, on the material presented, demonstrates the existence of a right apparently infringed and calling for rebuttal by the opposite party. 40.Additionally, they cited Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1, submitting that where ownership of land is contested, the court should preserve the property pending the final determination of the dispute. 41.On whether the Applicants stand to suffer irreparable harm if injunctive orders are not granted, the Applicants submitted that unless the Respondents were restrained, they stood to suffer irreparable harm incapable of compensation by an award of damages; that the Respondents had already gathered construction materials and workers to commence developments on the disputed property and that such developments would permanently alter the character of the land, thereby rendering the intended appeal nugatory. 42.The Applicants also relied on Butt v Rent Restriction Tribunal [1982] KLR 417, submitting that the Court’s discretionary power to grant stay or preservatory orders should be exercised so as to ensure that an intended appeal is not rendered nugatory. 43.They further relied on Kenya Breweries Ltd v Washington Okeyo [2002] eKLR, arguing that where damages are incapable of adequately compensating the injury likely to be suffered, injunctive relief ought to issue to preserve the subject matter of the litigation. 44.On whether the balance of convenience tilts in favour of granting injunctive orders, the Applicants submitted that the balance of convenience overwhelmingly favoured preservation of the suit property pending appeal; that whereas the Respondents would only suffer temporary inconvenience if restrained from undertaking further developments, the Applicants risked permanently losing the suit property before their appeal could be heard. 45.They relied on the decision in American Cyanamid Co. v Ethicon Ltd [1975] AC 396, where it was held that where the court is in doubt, it ought to preserve the status quo pending trial. 46.Further reliance was placed on Charanlal Shivlal Shah v Standard Chartered Bank & Others [1996] eKLR, in which the Court observed that the balance of convenience should favour the party likely to suffer the greater prejudice if the orders sought are declined. 47.On who should bear the costs of the application, they submitted that costs should follow the event; that they had been compelled to institute the present application after their earlier appeal was struck out on a procedural objection despite having acted diligently by filing it within time; and that the Respondents had opposed the application while continuing with developments on the disputed property, thereby necessitating the present proceedings. 48.Therefore, the applicant urged the Court to allow the application in its entirety, grant leave to appeal out of time, issue the injunctive orders sought, and award them the costs of the application. 49.The 1st Respondent filed their written submissions dated 11th May 2026 where he raised the following issues for determination before this court:i.Whether the Appellants/Applicants have established a prima facie case with a probability of success.ii.Whether the Appellants/Applicants have demonstrated irreparable harm that cannot be compensated by damages.iii.Whether the balance of convenience tilts in their favour.iv.Whether the Appellants/Applicants have satisfied sufficient cause to warrant leave to file an appeal out of time.v.Whether the Application is a waste of judicial process and who should bear the costs. 50.On whether the Applicants have established sufficient cause to warrant leave to file an appeal out of time, the 1st Respondent submitted that the Applicants have failed to demonstrate sufficient cause to justify the extension of time sought. 51.He argued that the Applicants had already exercised their right of appeal through an appeal filed by Ole Yenko & Co. Advocates, which was subsequently struck out after a Preliminary Objection was upheld vide a ruling delivered by this court on 27th November 2025; and that the Applicants cannot seek a second opportunity to appeal after failing to comply with procedural requirements in the earlier appeal. 52.He further submitted that the reasons advanced by the Applicants, namely financial hardship, mistakes of previous counsel and reliance on the constitutional right of appeal, do not constitute satisfactory grounds for extension of time. 53.Further, that extension of time is a discretionary remedy available only to a diligent litigant who provides a satisfactory explanation for delay. Reliance was placed on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] eKLR and Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR. 54.He submitted that the Applicants’ claim that the previous appeal was dismissed on a mere technicality was misleading as the court had found the appeal incompetent ab initio. Reliance was further placed on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 for the proposition that proceedings instituted without jurisdiction are a nullity. 55.On whether the Applicants have established a prima facie case with a probability of success, he submitted that the Applicants have failed to establish a prima facie case with any probability of success; that the trial court had conclusively determined that the Applicants were trespassers and that ownership of Plot No. 308 Block 4 vested in the 1st Respondent; and that the Applicants’ suit was dismissed while the 1st Respondent’s Counterclaim was allowed after a full hearing. 56.He further argued that the Applicants’ subsequent appeal filed through Ole Yenko & Co. Advocates was struck out and that the intended appeal disclosed no arguable grounds capable of upsetting the findings of the trial court. 57.Reliance was placed on Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the court held that the first requirement for an injunction is a prima facie case with a probability of success; Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where the court of Appeal held that a prima facie case is not established by mere assertions but by rights recognized in law; and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 that defined a prima facie case. 58.The 1st Respondent also submitted that the constitutional right of appeal must be exercised within the framework prescribed by law and relied on the decision of the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR. 59.On whether the Applicants have demonstrated irreparable harm incapable of compensation by damages, it was the 1st Respondent’s submission that the Applicants had failed to demonstrate any irreparable injury that could not be compensated by an award of damages. Further, that the alleged injury was speculative and unsupported by evidence. 60.On whether the balance of convenience favours the grant of injunctive orders, the 1st Respondent submitted that the balance of convenience tilts decisively in his favour as the lawful owner and person in possession of the suit property; and that the orders sought would restrain him from utilizing land which had already been adjudged to belong to him and would effectively dispossess a successful litigant. 61.It was submitted that the Applicants had never been in possession of the suit properties and therefore stood to suffer no prejudice if the orders were denied. Reliance was placed on Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] eKLR, where the court held that the balance of convenience must favour the party in lawful possession; and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where the court held that injunctions cannot be issued to dispossess a rightful owner. 62.On whether the application amounts to an abuse of the court process and who should bear costs, it was submitted that the application is frivolous, vexatious and an abuse of the court process, as the orders sought herein are similar to the ones sought in the truck out appeal. 63.Reliance was placed on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR for the proposition that abuse of court process occurs where court procedures are used for improper purposes, including delaying or frustrating the enforcement of valid judgments. 64.He further submitted that Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution require the expeditious disposal of disputes and discourage unnecessary delay. 65.He urged the court to dismiss the istant application with costs placing reliance on Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR on the principle that costs follow the event. 66.The 2nd Respondent also filed his written submissions dated 11th May 2026 in opposition to the instant Application, in which he raised the following issues for determination:i.Whether the 1st and 2nd Appellants/Applicants herein should be granted leave to file and serve their appeal out of time.ii.Whether temporary injunction orders should be issued to restrain the 1st and 2nd Respondents from selling, developing, alienating and/or in any other way dealing or interfering with the 1st and 2nd Appellant’s ownership and possession of Plot 307 Block 4 and/or Plot 308 Block 4, Narok Town. 67.On whether the 1st and 2nd Appellants/Applicants should be granted leave to file and serve their appeal out of time, the 2nd Respondent submitted that he vehemently opposed the Applicants’ prayer for leave to appeal out of time; that the Applicants had previously exercised their right of appeal, but the appeal was struck out for want of locus standi. 68.The 2nd Respondent submitted that the Applicants bore the burden of demonstrating good and sufficient cause for the delay by providing a credible and satisfactory explanation, rather than attributing the delay to inadvertence or negligence; and that such an application ought to be made without undue delay. 69.He further submitted that the Applicants had failed to furnish the Court with any reasonable or satisfactory explanation for the delay in lodging the intended appeal. According to the Respondent, the Applicants were represented by advocates throughout the trial and were at liberty to file the appeal within the prescribed timelines but neglected to do so. It was contended that there had been inordinate and unexplained delay in bringing the application, rendering it devoid of merit. 70.The 2nd Respondent further submitted that extension of time under Section 95 of the Civil Procedure Act is discretionary and not automatic. Reliance was placed on Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court held that extension of time is an equitable remedy available only to a deserving party and that an applicant must lay a satisfactory basis for the Court’s exercise of discretion. 71.He urged the Court to consider whether there was a reasonable explanation for the delay, whether the application was brought without undue delay, and whether the Respondents would suffer prejudice if the extension was granted. 72.The 2nd Respondent therefore submitted that the Applicants had failed to satisfy the legal threshold for enlargement of time and that the prayer should be declined. 73.On whether temporary injunctive orders should issue pending the hearing and determination of the application and intended appeal, the 2nd Respondent submitted that judgment in Narok CMCC No. 200 of 2013 (consolidated with Narok CMCC No. 57 of 2013) was delivered on 13th May 2025 in favour of the Respondents; the judgment declared Plot No. 307 Block 4 to belong to the 1st Respondent, dismissed the claims by Applicants, nullified the allotment letter issued to the Applicants, ordered rectification of records, and declared Plot No. 308 Block 4 to belong to him, the 2nd Respondent. 74.It was submitted that for an injunction pending appeal to issue, the Applicants must demonstrate substantial loss and establish a prima facie case. The 2nd Respondent argued that the Applicants had failed to meet these requirements. 75.The 2nd Respondent relied on the statement of defence filed by the 3rd Respondent, the allocating authority, which allegedly confirmed that the Applicants had never been allocated Plot No. 307 Block 4. Counsel submitted that it is trite law that parties are bound by their pleadings. 76.Further, the 2nd Respondent submitted that the draft Memorandum of Appeal did not disclose any arguable or triable issues with a likelihood of success. It was argued that the Applicants’ case was riddled with contradictions, particularly the 1st Applicant’s testimony concerning whether he had lost or misplaced his allotment letter. The Applicants were also said to have been inconsistent on whether Plot No. 307 Block 4 had been developed. 77.The Respondent referred to Order 42 Rule 6 of the Civil Procedure Rules and submitted that no evidence had been placed before the Court to show that the intended appeal would be rendered nugatory if the orders sought were not granted; and that the Applicants had not demonstrated any substantial loss or prejudice. On the contrary, the Respondents would suffer prejudice by being denied the fruits of a judgment delivered in his favour. 78.Reliance was placed on Maleto v Thini, Environment and Land Appeal E008 of 2025 [2025] KEELC 5065 (KLR), where the Court outlined the principles applicable in granting injunctions pending appeal. The Respondent submitted that the Court must consider whether the appeal is arguable and not frivolous, whether the injunction is necessary to preserve the subject matter, whether refusal would render the appeal nugatory, and where the balance of hardship lies. 79.The Respondent submitted that there was no evidence of any imminent alienation or interference with the suit properties to warrant preservation orders and that the application was therefore frivolous, vexatious, and an abuse of the court process. 80.Having carefully considered the instant Notice of Motion Application, the Respondents’ Replying Affidavits, and the rival written submissions filed by the parties, the issues that arise for determination are:i.Whether the Applicants have established sufficient cause to warrant leave to file and serve an appeal out of time.ii.Whether the Applicants have satisfied the conditions for the grant of temporary injunctive orders pending the hearing and determination of the intended appeal.iii.Who should bear the costs of the application. 81.On the first issue, the Applicants sought leave to file an appeal out of time pursuant to Section 79G of the Civil Procedure Act. Their case is that immediately after the delivery of the judgment on 13th May 2025, they instructed the Law Firm of Ole Yenko & Co. Advocates who promptly lodged an appeal together with an application for stay of execution on 20th May 2025, well within the statutory period and that the said appeal was subsequently struck out following this Court’s ruling delivered on 27th November 2025 after upholding a Preliminary Objection challenging the competence of the advocates who had filed the appeal. 82.The Respondents oppose the application on the ground that the Applicants have failed to demonstrate sufficient cause for extension of time and contend that litigation must come to an end; and that the Applicants had already exercised their right of appeal, that the appeal was found incompetent, and that mistakes of counsel cannot be used as a basis for circumventing statutory timelines. 83.The principles governing extension of time are well settled. Section 79G of the Civil Procedure Act grants this Court discretion to admit an appeal out of time where sufficient cause is shown. However, the said discretion must be exercised judiciously and not capriciously. See the case of 84.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court held that extension of time is an equitable remedy which is not available as of right, and that in exercising its discretion the Court should consider, among other factors, the length of delay, the explanation for the delay, the prejudice likely to be occasioned to the opposite party and whether the application has been brought without undue delay. 85.Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] eKLR, the Court of Appeal held that the Court should consider the length of delay, the reason for the delay, the chances of the appeal succeeding and the prejudice to the respondent. The length of delay herein was inordinate, and allowing the application would prejudice the Respondents, who have participated in two other Appeals emanating from the same judgment sought to be appealed against. 86.Applying the above principles to the present case, and taking into account that there are already two Appeals emanating from the Judgment sought to be appealed, and where the Applicants herein were cited as Respondents, being ELC Appeal No. E010 of 2025, but they failed to participate, this court finds that no sufficient cause has been advanced for the delay in filing the intended Appeal. This court finds and holds that the Applicants have not satisfactorily explained the delay. 87.This court concurs with the Respondents averments and submissions that mistakes of counsel do not invariably entitle a litigant to extension of time, and if the applicants were kin to lodge an appeal, they should have participated in ELCA NO E010 OF 2025; County Government of Narok vs Bernard Maina Thin & Others, as Consolidated with ELCA NO E008 OF 2025 88.This court has perused the draft Memorandum of Appeal and is satisfied that it raises issues concerning ownership of Plot Nos. 307 and 308 Block 4, Narok Township, the evaluation of evidence by the trial court, and the legality of the findings reached. These are the same issues raised in the two consolidated appeals, and the court will determine them in the said appeals. 89.Consequently, this court finds and holds that the instant application for leave to appeal out of time has been overtaken by events, and no sufficient reasons have been advanced for the delay or failure to participated in the two already filed Appeals. The Applicants have not established sufficient cause to warrant the exercise of this Court’s discretion under Section 79G of the Civil Procedure Act. Consequently, this court disallow the prayer for leave to file and serve the appeal out of time. 90.Having failed to grant leave to appeal out of time, it is evident that there is no appeal pending or intended to be filed, and consequently, there would be no reasons to issues any orders of temporary injunction. For the above reasons, the prayer for temporary injunction is also disallowed. 91.As regards costs, the court finds and holds that the Respondents are the successful litigants and are entitled to costs of this Application. 92.Consequently, this court finds and holds that the instant Notice of Motion Application dated 24th December 2025, is not meritorious, and the same is disallowed entirely with costs to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2026.L. GACHERUJUDGE.Delivered online in the presence of:Elijah Meyoki – Court AssistantNo appearance for the Applicants.Ms Mogere for the 1st Respondent.Ms Lyonah holding brief forMr Maina Ngaruiya for 2nd Respondent.L. GACHERUJUDGE.