https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3868

Maar Petroleum Limited v Ngare (Miscellaneous Application E009 of 2026) [2026] KEELC 3868 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEELC 3868 (KLR) Republic of Kenya In the Environment and Land Court at Thika Miscellaneous Application E009 of 2026 JA Mogeni, J June 23, 2026 Between Maar Petroleum Limited Applicant and Agnes Wanja Ngare Respondent (Being an Appeal against the Ruling and Order of the Chief Magistrate, Hon. Joseph Were at Ruiru delivered on 15th December, 2025 in the Chief Magistrate’s MCCOMMSU No. E044 OF 2024 at Ruiru) Ruling 1.This Application is brought under Order 50 Rule 6 and Order 51 of the Civil Procedure Rules 2010, read together with Sections 1A, 1B, 3A, 3B, 65(1)(b), and Section 95 of the Civil Procedure Act, alongside all other enabling provisions of the law. 2.The Applicant seeks the following:1.Spent.2.That this Honourable Court be pleased to enlarge and extend time within which the Appellant may file and serve the Memorandum of Appeal against the Ruling of the Honourable Chief Magistrate Honorable Joseph Were dated the 15th December, 2025 in the Chief Magistrates Court MCCOMMSU No. E044 of 2024 at Ruiru.3.That this Honourable Court be pleased to set the time within which the Memorandum of Appeal may be filed or in the alternative the Memorandum of Appeal attached herein be deemed to be properly on record with requisite payment of Court fees.4.That this Honorable Court be pleased to stay proceedings at the trial Court pending determination of this appeal.5.That the costs of and incidental to this application abide by the results of the Intended Appeal. 3.The application is supported by the Supporting Affidavit of YUSUF ABDI HUSSEIN and it is primarily grounded on the fact that the dispute involves a substantial interest in a 21-year lease of property known as L.R Ruiru East Block 1/846, which was granted to the Applicant in 2015. Although the Applicant timely challenged the trial Court’s jurisdiction through a Preliminary Objection supported by a Valuation Report, the trial Court dismissed the objection in a Ruling delivered on 15/12/2025. 4.That the subsequent delay in filing the appeal was neither intentional nor inordinate, as it was occasioned by the Court’s failure to supply the Ruling or upload it to the digital system despite active requests from the Applicant. Having only received the Ruling via email on 26/01/2026, the Applicant is now eager to challenge the decision and has already prepared a Draft Memorandum of Appeal. It is the Applicant’s contention that unless time is extended and a stay of proceedings granted, they will suffer irreparable prejudice by being forced to proceed with a trial in a forum that may lack the requisite jurisdiction. 5.Furthermore, in the Supporting Affidavit sworn on even date the Appellant/Applicant herein, deposes that the underlying dispute stems from a 21-year lease agreement for the property L.R Ruiru East Block 1/846, which was entered into on 2/06/2015. He avers that following the Respondent's suit and subsequent amendment of the Plaint, he filed a Notice of Preliminary Objection dated 6/10/2025 challenging the trial Court’s jurisdiction a challenge fortified by a Valuation Report from Cambrian Valuers Limited, which is annexed to the application. 6.The Applicant further explains the procedural hurdles faced after the trial Court, presided over by Hon. Joseph Were, dismissed the said Preliminary Objection on 15/12/2025. He clarifies that the delay in filing the appeal was not due to any professional negligence or lack of interest, but rather the unavailability of the formal Ruling. Despite consistent follow-ups, the Ruling was only transmitted to his Advocates via email on 26/01/2026, a copy of which is annexed herein as proof of the date of receipt. 7.He depones that he is genuinely desirous of appealing the decision, as evidenced by the annexed Draft Memorandum of Appeal. He maintains that there has been no inordinate delay in seeking the Court’s intervention and asserts that he will suffer immense prejudice if the Court does not grant the prayers for extension of time and a stay of the lower Court proceedings. 8.The Application is opposed by the Defendant who filed Grounds of Opposition which are undated and a Replying Affidavit sworn by the Plaintiff on 13/02/2026. 9.In the Grounds of Opposition, the Respondent opposes the application on the basis that it is misconceived, incompetent, and a clear abuse of the Court process. It is the Respondent's contention that the Applicant has failed to provide any sufficient cause or satisfactory explanation for the delay in filing the intended appeal to warrant the Court exercising its discretion to extend time. 10.Furthermore, the Respondent maintains that the intended appeal is unmeritable and fails to raise any serious questions of law, as the trial Court’s Ruling of 15/12/2025 was a proper exercise of judicial discretion in dismissing the Preliminary Objection. The Respondent asserts that this application is merely a tactic calculated to delay the hearing and final determination of the main suit pending before the subordinate Court. Consequently, the Respondent argues that they stand to suffer significant prejudice should this application be allowed. 11.In her Replying Affidavit, the Defendant, Agnes Wanja Ngare vehemently opposes the application, deposing that the same is a procedural manoeuvre calculated to stall the substantive hearing of the lower Court suit. She avers that the Applicant was present when the impugned Ruling was delivered virtually on 15/12/2025, yet failed to demonstrate any diligent or continuous follow-up to obtain the written copy until the alleged receipt on 26/01/2026. She contends that the Applicant’s inaction constitutes procedural indiscipline and indolence, and that the letter requesting the Ruling (annexed by the Applicant) does not sufficiently explain the gap in time or meet the threshold for sufficient cause. 12.On the merits of the intended appeal, the Respondent deposes that the matter is not arguable as it seeks to re-litigate a properly determined interlocutory issue. She asserts that the Preliminary Objection in the lower Court which was premised on a Valuation Report (annexed to the Applicant’s Motion), was a misguided attempt to convert a straightforward rent recovery dispute into a land valuation matter. She maintains that jurisdiction is determined by the Plaintiff’s pleadings and the reliefs sought, rather than extraneous valuation arguments introduced by a Defendant. 13.Further the Respondent deposes that the trial Court correctly found that the objection required factual interrogation rather than being a pure point of law. She notes that the lower Court matter is already scheduled for mention on 3/03/2026 and that granting an extension of time or a stay of proceedings would cause her undue prejudice by paralyzing an active suit. She concludes that since the Applicant still has the opportunity to ventilate his defense at the main trial, the application lacks merit and should be dismissed with costs. 14.On 23/02/2026 the parties agreed to canvass the application by way of written submissions. At the time of writing this Ruling only the Applicant had filed their submissions dated 22/04/2026. I have considered the submissions in the decision I have made. Analysis and Determination 15.In this application the Applicant seeks an enlargement of time to file and serve a Memorandum of Appeal against the Ruling of Hon. Joseph Were, Chief Magistrate, delivered on 15/12/2025 at Ruiru. Additionally, the Applicant seeks a stay of the trial Court proceedings pending the determination of the intended appeal. 16.From the pleadings and the rival Affidavits, the following three issues fall for determination:1.Whether the Applicant has demonstrated sufficient cause for the delay in filing the appeal.2.Whether the intended appeal is arguable or merely a dilatory tactic.3.Whether the Applicant has satisfied the criteria for a stay of proceedings. 17.On the extension of time; the power of this Court to extend time is discretionary but must be exercised judicially. The Applicant attributes the delay to the trial Court's failure to supply the written Ruling delivered virtually on 15/12/2025. Evidence annexed to the Supporting Affidavit confirms the Ruling was only transmitted to the Applicant’s Advocates via email on 26/01/2026. 18.The Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR set the standard where it stated:“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; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court; extension of time is a consideration on a case to case basis; and where there is the merit of the intended appeal, this should be a consideration." 19.In this case, the period between the delivery of the Ruling and the supply of the typed version (approx. 42 days) includes the December Court recess. The Applicant has demonstrated that he pursued the Ruling. As held by the Court of Appeal in Wasike v Swala [1984] KLR 591, by Kneller, J.A.:“The Court has a limited discretion to extend the time... it is a discretion to be exercised on the facts of each case. The period of delay is not the only consideration. The reason for the delay is also important." 20.I find that the delay in obtaining the written Ruling from the Registry is a plausible and sufficient reason. A party cannot be penalized for the administrative delays of the Court system. 21.On the argue-ability of the intended appeal, the Respondent argues that the appeal is unmeritorious. However, the intended appeal challenges the jurisdiction of the Magistrate's Court based on the valuation of the suit property. Jurisdiction is a fundamental threshold issue. 22.On what constitutes an arguable appeal, the Court of Appeal in Kenya Shell Limited v Kibiru [1986] KLR 410, per Platt, J.A., observed:“It is sufficient if a single bonafide arguable ground of appeal is raised... An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court." 23.The question of whether a rent dispute involving a 21-year lease can be evaluated for jurisdictional purposes based on the market value of the land is a point of law that warrants appellate interrogation. 24.On stay of proceedings, the Applicant seeks to stop the trial until the jurisdictional question is settled. If the Court eventually finds the trial Court lacked jurisdiction, any proceedings conducted in the interim would be a nullity. 25.In Silverstein v Chesoni [2002] 1KLR 867, the Court emphasized that:“The Court will grant a stay if it is satisfied that the appeal is arguable and that if the stay is not granted, the appeal, if successful, would be rendered nugatory." 26.While the Respondent argues that she is being delayed, the prejudice of proceeding with a potentially null trial outweighs the prejudice of a temporary delay. Jurisdiction is everything; without it, as Nyarangi, J.A. famously stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1:“Jurisdiction is everything. Without it, a Court has no power to make one more step... A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." Final Determination 27.Consequently, I find that the Applicant has satisfied the requirements for the prayers sought. The Application is meritorious and is hereby allowed in the following terms:i.Time be and is hereby enlarged for the Applicant to file and serve the Memorandum of Appeal.ii.The Memorandum of Appeal already filed and annexed to the Application be and is hereby deemed as properly filed and served upon the Respondent as of today’s date, subject to the payment of requisite Court fees within seven (7) days.iii.A stay is hereby issued against the proceedings in Ruiru MCCOMMSU No. E044 of 2024 pending the hearing and determination of this Civil Appeal.iv.The Applicant is directed to file and serve the Record of Appeal within thirty (30) days from the date of this Ruling.v.The costs of this Application shall abide by the outcome of the Appeal.vi.Mention on the disposal of Appeal on 30/07/2026. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 23RD DAY OF JUNE 2026.…………………………MOGENI JJUDGEIn the presence of:………………………………………….…………. Appellant……………………………………… …..……….RespondentMr. Melita …………………………….. Court Assistant…………………..MOGENI JJUDGE