https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5033

### **REPUBLIC OF KENYA** ### **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** ### **ELCLMISC. APPLICATION NO. E034 OF 2026** **BETWEEN** **LONKISA OLE MUCHENE ....................................................... APPLICANT/APPELLANT** **VERSUS** **EDWARD JAMES KARUNGU ................................................................ 1ST RESPONDENT** **CHARLES THUO KARUNGU ................................................................ 2ND RESPONDENT** *(Being sued as personal representatives of the Estate of Henry Mwaniki Karungu (Deceased))* **CHIEF LAND REGISTRAR, KAJIADO NORTH ................................ 3RD RESPONDENT** **BENSON MATIAS KUYATEI ................................................................. 4TH RESPONDENT** **EZEKIEL FUKWO WAFULA ................................................................ 5TH RESPONDENT** **DAVID RIGICHA NGANGA ................................................................... 6TH RESPONDENT** ### **RULING** ***(In respect of the Notice of Motion application dated 21st May 2026 seeking leave to file an appeal out of time)*** **Introduction** 1. Before this Court for determination is the Notice of Motion dated 21st May 2026, brought by the Applicant/Appellant, **Lonkisa Ole Muchene**, seeking leave of this Court to file an appeal out of time against the judgment of the trial court delivered in Kajiado Magistrate Court ELC Civil Case No. MC.ELC 61 of 2019. 2. The application is expressed to be brought under Article 159(2)(d) of the Constitution of Kenya, 2010, Section 95 of the Civil Procedure Act (Cap 21, Laws of Kenya), Order 50 Rule 5 of the Civil Procedure Rules, 2010, and all enabling provisions of law. 3. In the said application, the Applicant prays for leave to file an Appeal out of time and upon grant of the leave, the annexed Memorandum of Appeal and record of Appeal be deemed as duly filed upon payment of requisite court fees. 4. The Application is supported by the Affidavit of **Lonkisa Ole Muchene** sworn on 21st May 2026. The applicant avers that the impugned judgment in Kajiado Magistrate’s Court ELC Civil Case No. MCELC 61 of 2019 (*Edward James Karungu & Another v. Lonkisa Ole Muchene & 5 Others*) was delivered on 20th May 2025. 5. Being aggrieved by the lower court’s determination, the Applicant, through his advocates on record (M/s Muriungi & Company Advocates), formally requested for certified copies of the Judgment, Decree, and typed proceedings on 26th May 2025. 6. On 27th May 2025, the Applicant erroneously initiated an appeal and stay of execution application before the High Court Civil Division at Kajiado under Case No. HCCA/E075/2025. Upon coming up for directions on 10th July 2025, the 1st and 2nd Respondents raised a preliminary objection to the High Court’s jurisdiction over land matters, necessitating the withdrawal of the matter from the High Court. 7. In attempting to immediately re-lodge the appeal before the proper forum (Environment and Land Court), the Applicant’s advocate encountered e-filing system downtime on the Judiciary portal between 11th and 13th July 2025, as confirmed by official Judiciary public notices. The matter was subsequently successfully registered on 14th July 2025 as ELC Appeal No. ELCLA/E042/2025. 8. When the matter came up for directions before this Court on 29th October 2025, the court noted that the appeal had been lodged outside the statutory time limits without prior leave, and accordingly directed the Applicant to move the court by way of a formal application for leave to admit the appeal out of time. 9. The Applicant contends that the delay in filing the appeal was neither inordinate nor intentional, but was fully explained by the administrative error in the initial filing, jurisdictional redirection, and portal downtime. The Applicant further asserts that the draft Memorandum of Appeal annexed to the application raises arguable and triable issues of law and fact regarding contract law, duress, and evaluation of evidence, and that no prejudice will be suffered by the Respondents if the orders sought are granted. 10. It is noteworthy that despite due service none of the Respondents filed a Replying Affidavit, Grounds of Opposition, or any response whatsoever. Consequently, this Application proceeds before this Court as **unopposed**. 11. The application was canvassed by written submissions, the submissions of which have been duly considered in the writing of this ruling. **Analysis of Submissions** 1. The Applicant’s written submissions, dated the 12th of July 2026, urge the Court to grant leave to file an appeal out of time against the judgment delivered on May 20, 2025, in Kajiado Magistrate Court ELC Case Number 61 of 2019. The Applicant anchors the application on Article 159(2)(d) of the Constitution of Kenya, 2010, Sections 95 and 79G of the Civil Procedure Act, and Order 50 Rule 6 of the Civil Procedure Rules. Counsel formulates two primary issues for the Court's determination: whether the appeal was brought within a reasonable time, and whether the 1st and 2nd Respondents stand to suffer any prejudice should the leave be granted. 2. On the first issue, the Applicant contends that there was a consistent and clear intention to pursue the appeal from the onset. The trial court delivered its judgment on May 20, 2025, and the Applicant formally requested copies of the proceedings shortly after, on May 26, 2025. The proceedings were subsequently supplied twenty-three days later, on June 18, 2025. The Applicant asserts that an intended appeal and a stay application were simultaneously filed at the High Court Civil Division, and the requisite filing fees were duly paid. This initial misdirection to the High Court Civil Division was reportedly necessitated by technical failures within the Judiciary's Case Tracking System (CTS), which temporarily lacked the option to file at the Kajiado High Court ELC. The Applicant invites the court to take judicial notice of the frustrating challenges that litigants periodically face with the CTS platform. Following the withdrawal of the matter from the High Court, the Applicant lodged the present application and the appeal before this Court on July 17, 2025, which translates to fifty-six days post-judgment and twenty-seven days after receiving the typed proceedings. 3. To buttress the argument that the delay was reasonable and largely out of the litigant's direct fault, the Applicant relies on a raft of authorities. Citing the Court of Appeal decision in *John Kasimu Kilatya v The Chairman Machakos Land Disputes Tribunal & Others*, which cited with approval *Ramanya v Zaver* [2002] 2 EA 329, the Applicant submits that a litigant should not be penalized for the dilatory conduct or mistakes of their counsel. This position is further reinforced by *Patrick Maina Mwangi v Wawere Peter* [2015] eKLR, where the court noted that punishing an advocate for every blunder does not necessarily serve the ends of justice for the client. On the test for inordinate delay, the Applicant relies on *Cecilia Wanja Wamwira v Jackson Wainaina Muiruri & Another* [2018] eKLR to argue that the court must evaluate the appellant's overall conduct in the circumstances of the case. The Applicant further cites *Keiru v Githumbi* (Miscellaneous Civil Case E088 of 2024) [2025] KEHC 10219 (KLR), emphasizing that an early intimation of an intent to appeal and active pursuit of the trial record militates in favor of granting an extension of time. Furthermore, relying on *Dilpack Kenya Limited v William Muthama Kitonyi* [2018] KEHC 4858 (KLR)—which cited with approval *Itute Ngui & Anor v Isumail Mwakavi Mwendwa* (Civil Application No. 166 of 1997)—the Applicant maintains that the exact nature and quality of the inadvertence (namely the CTS technical hitch and the subsequent jurisdictional misfiling) has been fully disclosed for the court's consideration. 4. Addressing the second issue regarding prejudice, the Applicant submits that granting the application will not occasion any harm to the 1st and 2nd Respondents. The Applicant places reliance on the case of *David Ngugi v The Board of Governors Kamahuha Girls High School* [2016] KEELC 400 (KLR), arguing that since the Respondents will have their day in court to respond to the appeal, any potential prejudice suffered is fully compensable by an award of costs. Consequently, the Applicant maintains that he has approached the court with clean hands, and the interests of justice, fairness, and equity heavily favor the enlargement of time to allow the exercise of his statutory and constitutional right of appeal. **Analysis and Determination** 1. Having considered the Notice of Motion, the Supporting Affidavits, the annexures thereto, and the written submissions filed by Counsel for the Applicant, and noting that the Application stands unopposed, the main issue that presents itself for determination by this Court is **whether the Applicant has demonstrated good and sufficient cause to warrant the exercise of this Court’s judicial discretion to enlarge time and grant leave to file the intended appeal out of time.** 2. The statutory gateway governing appeals from subordinate courts to the Environment and Land Court (and High Court) is anchored under **Section 79G of the Civil Procedure Act (Cap 21, Laws of Kenya)**, which provides verbatim as follows: ***“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”*** 1. The above provision is replicated verbatim under section 16A of the Environment and Land Court Act. 2. Complementing the above provision is **Section 95 of the Civil Procedure Act (Cap 21, Laws of Kenya)**, which grants general discretionary power to the Court to extend prescribed timelines verbatim: ***"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."*** 1. Furthermore, **Order 50 Rule 6 of the Civil Procedure Rules, 2010** provides verbatim: ***"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."*** 1. At the constitutional level, **Article 159(2)(d) of the Constitution of Kenya, 2010** mandates that: ***"In exercising judicial authority, the courts and tribunals shall be guided by the following principles— ... (d) justice shall be administered without undue regard to procedural technicalities;"*** 1. The legal principles that govern applications for extension of time to file an appeal out of time are well-settled in Kenyan jurisprudence. The Supreme Court of Kenya in the locus classicus case of ***Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR,*** set out the governing parameters verbatim as follows: 2. ***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;*** 3. ***A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court;*** 4. ***Whether the court should exercise the discretion to extend time, is a feature to be determined from case to case;*** 5. ***Delay should be explained to the satisfaction of the court;*** 6. ***Whether there will be prejudice suffered by the Respondents if the extension is granted;*** 7. ***The length of delay;*** 8. ***The degree of prejudice to the respondent if the application is granted;*** 9. ***Public interest considerations; and*** 10. ***The prospects of success of the intended appeal.*** 11. Similarly, the Court of Appeal in **L*eo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231***, restated the foundational principles verbatim: ***"It is now settled that the decision whether or not to extend 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."*** 1. The lower court delivered its judgment on 20th May 2025. The statutory 30-day period under Section 79G of the Civil Procedure Act was due to lapse on or about 19th June 2025. The record reveals that the Applicant requested certified copies of the judgment and proceedings on 26th May 2025, a mere six (6) days after judgment. The typed proceedings were issued by the magistrate's court on 18th}June 2025. 2. Instead of sitting idle, the Applicant initiated an appeal and stay of execution application on 27th May 2025. However, due to a technical glitch on the Judiciary's Case Tracking System (CTS), where the Kajiado High Court ELC portal option was unavailable, counsel mistakenly filed the matter in the High Court Civil Division. Upon a preliminary objection raised regarding jurisdiction on 10th July 2025, the Applicant promptly withdrew the matter from the Civil Registry and successfully re-lodged it in this Court on 17th July 2025, following a short portal downtime between 11th and 13th July 2025. 3. The total delay from the date of receiving proceedings (18th June 2025) to re-filing before the correct forum (17th July 2025) was twenty-seven (27) days. The Court finds that a delay of 27 days is neither inordinate nor unreasonable in the circumstances. 4. The explanation provided, a combination of CTS technical difficulties, administrative misdirection by counsel, and swift corrective steps once alerted, is plausible and satisfactory. In addressing mistake of counsel, the Court of Appeal in ***John Kasimu Kilatya v. Chairman Machakos Land Disputes Tribunal & Others [2014] eKLR***, cited with approval **Ramanya v. Zaver [2002] 2 EA 329**, holding that: ***"The mistakes, faults or dilatory conduct of counsel should not be visited on the litigant."*** 1. Furthermore, Madan, JA (as he then was) eloquently articulated the principles regarding advocate errors in ***Belinda Murai & 9 Others v. Amos Wainaina [1978] eKLR***, stating that: ***"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less a mistake because it is made by an advocate. The main thing is that it should be a bona fide mistake."*** 1. This Court is satisfied that the mistake made by counsel in initial filing was a *bona fide* error exacerbated by system portal challenges, and the Applicant should not be shut out from the seat of justice on that account. 2. On whether the intended appeal raises triable issues, the Court has looked at the draft Memorandum of Appeal annexed to the application. The intended appeal challenges the trial magistrate's evaluation of evidence, interpretation of contract law principles, and allegations of duress. Without determining the merits of the appeal at this interlocutory stage, the Court is satisfied that the proposed grounds are not frivolous and raise arguable points of law and fact deserving of a full hearing. 3. The Applicant asserts that the Respondents will suffer no prejudice that cannot be compensated by an award of costs. In ***David Ngugi v. Board of Governors Kamahuha Girls High School [2016] eKLR,*** the Court held that: ***"On whether the respondent will suffer prejudice if the application is allowed, since the respondent will have its day in court, I hold the view that the prejudice if any to be occasioned to it if the application is allowed is compensable by way of costs."*** 1. Crucially, despite service of the Application upon all six Respondents, none filed any response, Replying Affidavit, or Grounds of Opposition. The Application therefore stands **unopposed**. In the absence of any opposing affidavit, the factual assertions made by the Applicant remain uncontroverted and unchallenged. 2. In ***Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others [2014] eKLR***, the Supreme Court reiterated that uncontroverted evidence stands admitted as true where service is properly effected and no response is filed. 3. Balancing the right of the Applicant to exercise his constitutional right of appeal under Article 50(1) and Article 159(2)(d) against the administration of justice, this Court finds that the scales of justice tilt overwhelmingly in favor of granting the leave sought. 4. In the premise, the Notice of Motion dated 21st May 2026 is meritorious and is hereby allowed in the following terms: 5. ***LEAVE be and is hereby granted to the Applicant, Lonkisa Ole Muchene, to file an Appeal out of time against the Judgment of the trial court in Kajiado Magistrate Court ELC Case No. MCELC 61 of 2019 delivered on 20th May 2025 in the next fourteen (14) days from the date of this Ruling.*** 6. ***The costs of this Application shall be in the cause.*** It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Gichuru for the Applicant N/A by the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**