https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1288

Waime v Mwangi & 2 others (Civil Appeal 296 of 2019) [2026] KECA 1288 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1288 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 296 of 2019 W Karanja, HA Omondi & P Lilan, JJA July 10, 2026 Between Mary Nyambura Waime Appellant and Erick Mutunga Mwangi 1st Respondent Jane Muthoni Mutunga 2nd Respondent Rose Alasache Anusu 3rd Respondent (Being appeal from the judgment of the Environmental and Land Court of Kenya, Thika (Gacheru, J) dated 16th February 2018 in ELC Case No. 382 of 2017) Judgment 1.Mary Nyambura Wamae (the applicant,) claims to have been in possession of a parcel of land known as LR.no. 13748 (the suit property) since 1973. In her bid to assert what she considered to be her accrued rights of ownership on account of adverse possession, she lodged a claim by way of Originating Summons dated 24th December, 2012 before the Environment and Land Court at Thika (ELC) against the registered owners, i.e Erick Mutunga Nwangi and Jane Muthoni Mutunga (the 1st and 2nd respondents). In the course of proceedings, Rose Alasache Anusu (the 3rd respondent) was enjoined as an interested party. 2.By a judgment dated 16th February, 2018 the ELC (L. Gacheru, J) after a full hearing, found that the applicant failed to prove her claim that she was a trespasser on the suit property and dismissed the case with costs. Aggrieved by the said decision, the applicant filed notice of appeal dated 21st February, 2018 and later lodged record of appeal dated 2nd July 2019 (filed on 4th July, 2019) a period of around 4 months after the delivery of judgment. The said appeal was short lived as it was struck out on 10th July, 2024 following a successful application by the respondents vide a motion dated 26th August 2019. In that ruling, this Court, (Musinga, Gatembu and Achode, JJ.A) found that the appeal was belatedly lodged and without leave of this Court to file it out of time. 3.The said applicant is now back with a fresh application by way of Notice of Motion dated 30TH July 2024 brought under rule 1(2), 4, 23, 28(c), 43,48,58(3) & (4) of the Rules of this Court, Section 10 of the Judicature Act and sections 3A & 3B of the Appellate Jurisdiction Act. 4.The main relief sought in the application can be summarized into three limbs, namely; - stay of proceedings of the ELC, re- hearing of the application dated 26th August 2019 and reinstatement of the appeal which had been struck out by this Court on 10th July 2024 5.The Application which was initially brought under certificate of urgency is supported by an affidavit sworn by the applicant, Mary Nyambura Waime. 6.The grounds in support of the application argued by Mr. Keiro for the applicant in summary are as follows: -i.That a ruling was delivered on 10th July 2024 allowing the application dated 26th August 2019 which in effect struck out the appeal for being filed outside the time prescribed by the law for lodging an appeal.ii.The failure to file a response to the application was occasioned by inadvertence arising from a ‘’mix up of files” on the part of counsel then acting for her who reportedly told her that they were not served with directions on the hearing of the application; and also that said advocate had been informed on the morning of the hearing that the application was coming up for hearing; and that the said advocate’s efforts to seek time to put in a response was futile ad hence the application proceeded ex-parte.iii.That the respondents have commenced execution by initiating proceedings for committal to civil jail and there is a risk of being evicted from the suit property which she claims to be in possession. 7.The 1st and 2nd respondents filed a replying affidavit sworn by Erick Mutunga Mwangi on his own behalf and on behalf of the 2nd respondent, opposing the application on the grounds highlighted in summary by Mr. Mutwiri Kiganka. They are as follows:i.That the application dated 26th August 2019 was heard on 10th July , 2024 in the presence of the applicant’s counsel and not ex parte as contended; that prior to the said hearing, case management took place on 12th March 2024 (with prior notice to the counsel for the parties ) when directions were given in the presence of counsel for the applicant , and hearing notice was subsequently sent to both counsel for the parties on 27th June , 2024, hence all parties were informed in advance of the material dates for the mention and directions given in the presence of the respective advocates for all parties and also the date or the actual hearing.ii.that the present application seeks the rehearing of the application striking out the appeal. 8.In the written submissions filed by her current advocate on record dated 4th September, 2024, the appellant is focusing on the prayer for rehearing of the application dated 26th August 2019 invoking rule 58(2) & (3) of the rules of this court. It is argued that she has demonstrated sufficient reason to explain and excuse the failure to mount a response to the said application at the time it came up for hearing blaming it entirely on her previous counsel. Reliance is placed on the decision in Peter Kimani Kairu t/a Kimani Kairu & Company Advocates vs Anna Marie Cassiede & another [2017](eKLR) and the Ugandan case of Kanyomozi vs Motor Matt ( U) Lt d [1999] (UGSC6 (12 February 1999). 9.It is further submitted that the applicant had answers to the said application including assertion that the said application fell afoul of rule 86 of the rules of this Court and that the period it took to obtain certificate of delay from ELC satisfactorily explained delay so that the appeal should not have been struck out. In urging for reinstatement of the appeal, reliance is placed on the decision in Richard Ncharpi Leiyangu vs IEBC & 2 others [2013] eKLR in saying that this Court has powers to set aside its own orders in order to do justice. It is noted also that submissions make reference to a number of Articles of the Constitution including Article 159 urging this Court to administer justice without undue regard to technicalities of procedure. 10.Mr. Keiro appearing for the applicant made brief highlights in his oral address to the court on 16th June, 2026 during the hearing of the application. In urging for stay of proceedings (being the execution proceedings underway at the ELC) , he stated that the applicant faced the threat of eviction from the suit property as well as impending committal to civil jail for costs amounting to Kshs.657,719 and as such stay orders would be appropriate, adding that an appeal against the impugned judgment was arguable, pointing out that it was unjustifiable for the court to have allowed the application for striking out without affidavits of service and that the drastic step was taken without affording the applicant an opportunity to be heard; and that the applicant was deserving of constitutional protection under Article 159(2) of the Constitution. Mr. Keiro pointed to imminence of the foregoing execution saying that a Notice to Show Cause is coming up before the ELC on 29th July 2026, a development which he strongly urged this Court to consider in granting an early date for a ruling in the present application and to grant interim stay in the meantime pending delivery of the ruling. 11.Mr. Kiganka appeared for the 1st and 2nd respondents. In the written submissions dated 13th February 2025, the respondents contend that the applicant in this instance cannot invoke rule 58(2) of the rules of this Court as the application sought to be re-heard was heard in the presence of Mr. Gakaria advocate who represented the applicant (who was the respondent) at the hearing. It is submitted that in any event no useful purpose will come out of re-hearing of said application since the very reasons for which the appeal was struck out remain intact and unchanged. Those reasons were that the appeal was lodged out of time and without leave being sought to extend time for filing the record of appeal. The respondents cited the decision of the Supreme Court in the case of Nicholas Kiptoo Arap Salat vs IEBC & 7 others [2014] eKLR , in emphasizing that no appeal can be filed out of time without leave of court and such filing renders the document so filed a nullity. 12.On the certificate of delay, it is submitted that the letter requesting for proceedings was neither copied nor served upon the other party thus missing a crucial pre-requisite under rule 84(2) of the rules of the Court, hence the certificate of delay, though issued, could not provide any advantage at all in any bid to excuse the delay in lodging record of appeal out of time. Moreover, it is submitted that the application for striking out was filed on time as contemplated by rule 86 of the rules of this Court. 13.In his brief highlights before the Court on 16th June 2026 Mr. Kiganka opposed the application arguing that the application dated 29th August 2019 for striking out was not responded to and was heard upon proper service having been confirmed , and in any event there is no appeal and the proper way would be for the applicant to first seek reinstatement of the appeal before this Court can be moved for orders of stay ; that the applicant was represented by counsel on the day of hearing; that there was no appeal and/or competent appeal; that no sufficient reason was proffered to warrant re-opening of the said application. 14.Having read the notice of motion, the grounds in support thereof, the rival affidavits on record as well as the written submissions by both sides including the oral highlights thereof, we start with the rather urgent issue which commends itself for our quick determination. We say so bearing in mind the rather forceful presentation by counsel for the applicant urging us to consider the alleged imminence of eviction and possible committal to civil jail which are hanging over the head of the applicant. We, therefore, quickly look into the question as to whether the applicant has satisfied the requirements necessary for granting an order for stay of execution. 15.As a prelude to a consideration of the merits of the arguments before us in the instant application, this Court notes that the noble provision at Article 159 of the Constitution relied on by counsel for the applicant does not confer jurisdiction for admission of appeals out of time and that the proper way to move this Court is through the route of Rule 4 of this Court’s rules for extension of time as has been enunciated in several decisions of this Court. It is now a matter of judicial notoriety that Rule 4 of the Court of Appeal Rules, 2022, gives the Court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular prescribed action. Although under the said rule, this Court has unfettered discretion on whether to extend time or not, that discretion must be exercised judiciously as was set out in Leo Sila Mutiso vs Rose Wangari Mwangi, Civil Application No. Nai 255/97 (unreported), which pointed out that this discretion, however, must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013] eKLR. 16.In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR, M’Inoti, J. had this to say concerning Rule 4:“A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 17.Discretion also depends on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. The Supreme Court has settled principles to guide in exercise of discretion to extend time. The case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR sets down these principles as follows: -i.Extension of time is not a right to 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 extension of time has the burden of laying basis to the satisfaction of the court.iii.Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.iv.Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.v.Whether there will be any prejudice suffered by the respondent if extension is granted.vi.Whether the application has been brought without undue delay.vii.Whether in certain cases public interest should be a consideration for extension of time. 18.One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie the intended Appeal/Appeal has chances of success or is a mere frivolity. 19.That being said, we now go into the other request for stay of proceedings. Although the motion under consideration contains a prayer for stay, the provisions under which the motion is brought does not include rule 5(2)(b) of the rules of this Court which provide for applications for stay and injunctions pending appeal . 20.The Supreme Court in Civil Application No.12 of 2015, Deynes Muriithi & 4 Other vs LSK & Another [2016] eKLR stated that Rule 5(2)(b) applications arise at an interlocutory stage and the orders issued thereunder are for the purpose of protecting the subject matter of an Appeal, the Court of Appeal having yet to finally determine the Appeal. 21.In the case of Teachers Service Commission vs Kenya National Union of Teachers & 3 Others, Sup. Court App No.16 of 2015 [205] eKLR“(23)It is clear to us that Rule 5(2) (b) is essentially a tool for preservation. It safeguards the substratum of the Appeal in consonance with principles developed over the years.”(27)Rule 5 (2) (b) of the Court of Appeal Rules is derived Aricle 164(3) of the Constitution. It illuminated the Court of Appeal’s inherent discretionary jurisdiction to preserve the substratum of the Appeal/intended Appeal.” 22.This Court has set out the parameters to be met for an order of stay to be granted in an application under Rule 5(2)(b). In the case of Alferd Mincha Ndubi vs Standard Limited, [2020] eKLR, this court quoted with approval in the case of Ishmael Kangunyi Thande vs Housing Finance Company of Kenya Limited Civ. Appl No. Nai 157/2006: “to succeed in an application in 5(2)(b) the applicant has to establish that: -i.The Appeal is arguableii.The Appeal is likely to be rendered nugatory if the injunction is not granted and Appeal succeedsThese principles were restated by this court Multi Media University & Another vs Prof. Gitile N. Naituli [2014] eKLR ‘…from the long line of decided cases on Rule 5(2)(b) the jurisprudence is underlined in the case of Stanley Kangethe Kinyanjui vs Tony Ketter & Others [2013] eKLR as followsi.In dealing with Rule 5 (2)(b) the court exercises original and discretionary jurisdiction,ii.The discretion is wide and unfettered if it is just to do so,iii.Court becomes seized of the matter only after Notice of Appeal is filed under Rule 75,iv.In considering whether the Appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances,v.An applicant must satisfy the twin principles,vi.Whether Appeal is arguable, it is sufficient if a single bona fide arguable ground of Appeal is raised,vii.Arguable Appeal is not one that will necessarily succeed but one which ought to be argued fully before court and is not frivolous,viii.The court must not make a definitive/final finding as to facts of law in an application under Rule 5 (2) (b),”ix.Whether or not an Appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the aggrieved party. 23.What has given rise to this application is a ruling dated 10th July 2024, which struck out the applicant’s appeal. 24.On whether there is an appeal which is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. 25.An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008. 26.In considering an application brought under Rule 5(2)(b) the Court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra). 27.We have carefully considered the grounds set out in the motion and the memorandum of appeal. In our view the erstwhile appeal could very well have been arguable, inter alia, whether the Court erred on its finding to the effect that the applicant’s manner of entry and occupation of the suit property did not meet the legal test for adverse possession of the suit property. An arguable point is not necessarily one that must succeed, but merely one that is deserving of consideration by the Court. Without saying more as we are not seized of an appeal at this point, and more importantly because there is no competent appeal pending, we need not say more on this limb. 28.On the Appeal being rendered nugatory, if the relief sought were not to be granted, this Court has held in the case of Reliance Bank Limited vs Norlake Investment Limited [2002]1 EA 227 that the factors which render an Appeal nugatory are to be considered within the circumstances of each case and in so doing the court is bound to consider the conflicting claims of both sides. (see also Oraro & Rachier Advocates vs Co-operative Bank of Kenya [1999] LLR 1118 29.In the case of African Safari Club Limited vs Safe Rentals Limited, Nai Civ App 53/2010 this court held“…with the above scenario of almost equal hardship by the parties, it is incumbent upon the court to pursue the overriding objective to act fairly and justly…to put the hardships of both parties on scale… we think that the balancing act is in keeping with one of the principles aims of the oxygen principle of treating both parties with equality or placing them on equal footing in so far as is practicable.” In this the court is to decide which party’s hardship is greater.” 30.On this aspect, we are mindful of the fact that ELC dismissed the applicant’s suit, (hence a negative outcome that does not ordinarily qualify for grant of stay at this appellate level) the upshot of which the superior court held that the applicant had not acquired title to the suit property. There is, therefore, nothing to stay in such negative order. It would have been different if injunction was the relief being contemplated in instances where the already discussed hurdle of lack of competent appeal is not standing in the way. 31.Turning to the request for re-hearing of the application for striking out, we are satisfied that the parties were notified through respective counsel to attend case management on 12th March 2024 and directions given on the same date. Indeed, the applicant was represented by her former advocates on record during that motion when directions were given for the disposal of the said application. According to those directions, the respondent was to file a response to the application within 7 days, and that appellant to file submission 7 days after receipt of the response and the respondent to fie submission 7 days after receipt of the appellant’s submissions and a hearing date to be taken in the registry after compliance. There followed a notice of hearing issued on 27th June 2024 sent to counsel on record for the parties inviting them for the hearing scheduled for 10th July 2024. On the day of hearing, Mr. Gakaria was present for the respondent (applicant herein). We are persuaded by the submissions of the respondent in saying that the explanation for the failure to file any response does not amount to justifiable or reasonable excuse in the circumstances. More importantly as a matter of justice, nothing compelling has been advanced to convince us that there will be any useful different outcome in reopening the application for striking out. 32.On the contrary, it remains clear to us that the notice of appeal, though filed on time, was served on the opposing side way out of time. The record and memorandum of appeal were filed way out of time and without leave of this Court. It is also evident from the record that even any benefit that could have accrued towards reduction of period of delay as would have been accounted for by certificate of delay on record, is also in doubt given the failure to comply with rule 84(2) of the rules of this Court. Clearly under the principle stated in the case of Nicholas Kiptoo Salat (Supra) the appeal sought to be revived was incompetent and a nullity. 33.In the result the applicant has not met the threshold for grant of orders of stay and similarly failed to surmount requirements of rule 58(2) of the rules of this Court regarding re- hearing of application dated 26th August 2026. Finally her quest for reinstatement of the appeal which had been struck out by this Court is unmeritorious. 34.Accordingly, the notice of motion dated 30th July 2024 is dismissed. Costs to the 1st and 2nd respondents. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026W. KARANJA………………………JUDGE OF APPEALH. A. OMONDI………………………JUDGE OF APPEALPAUL LILAN………………………………………………JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR