https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3129

Mugo (Legal Representative of James Mugo Kiragu, Deceased) & another v Nderi & another (Environment and Land Miscellaneous Application E028 of 2025) [2026] KEELC 3129 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3129 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Miscellaneous Application E028 of 2025 SM Kibunja, J May 21, 2026 Between Milkah Wambui Mugo (Legal Representative of James Mugo Kiragu, Deceased) 1st Applicant Joel Kiragu 2nd Applicant and David Kibira Nderi 1st Respondent David Gichira Gachoki 2nd Respondent (Notice of Motion dated 23rd October 2025) Ruling 1.Before this Court for determination is the Applicant’s Notice of Motion dated 23rd October 2025, seeking principally for:a.Leave to file an appeal out of time against the judgment delivered on 11th September 2025 in Kerugoya CMCC No. 176 of 2014; andb.Stay of execution of the said judgment pending the filing and determination of the intended appeal.The application is supported by the affidavits of the 1st Applicant, Milkah Wambui Mugo, and that of counsel on record, Joseph Nyaga Muchiri. The Applicants’ case, as emerging from the supporting affidavits, is that the dispute concerns adjoining plots, namely Plot Nos. 10B and 10C (said to belong to the Applicants), and Plot Nos. 11B and 11C (said to belong to the Respondents), with Plot No. 11A lying in between and belonging to a third party. 2.The 1st Applicant depones inter alia that following the delivery of judgment on 11th September 2025, instructions were promptly issued to their advocate to lodge an appeal; that the counsel indicated that the appeal would be filed once the judgment was uploaded onto the Court’s tracking system; that the judgment was not immediately available and was only uploaded on or about 3rd October 2025; that thereafter, upon follow-up on 21st October 2025, counsel realized that the appeal had not been filed, due to an inadvertent mix-up of files; that the delay in filing the appeal was neither deliberate nor inordinate, and that they have an arguable appeal, as demonstrated by the annexed draft memorandum of appeal; that unless a stay is granted, the Respondents may proceed with execution, including demolition of permanent structures which have existed on the suit properties for many years, thereby rendering the intended appeal nugatory. 3.The 1st Respondent opposed the application through their replying affidavit terming it as incompetent, an abuse of the Court process, and premised on falsehoods; that the dispute has been ongoing since 2013 and that he has only recently obtained judgment in his favour after a protracted process; that the application is intended to delay and frustrate the realization of that judgment; that the alleged mix-up of files and failure by counsel to act is implausible and unsupported by evidence; that the Applicants’ conduct as indolent and undeserving of the Court’s discretion; that the Applicants’ annexed surveyor’s report is a reproduction of an earlier report by a different surveyor, and that the Applicants are introducing material that was not part of the trial record; that he stands to suffer continued injustice if the matter is reopened, having waited for over a decade to obtain judgment. 4.The learned counsel for the Applicants filed their submissions dated 24th November 2025, and relied on the decision in the case of Mwangi versus Kenya Airways Ltd (2003) eKLR for the factors to be considered in applications for extension of time, including the length of delay, the reason for the delay, the arguability of the appeal, and the degree of prejudice to the respondent.Counsel also cited the case of Philip Keipto Chemwolo & Another v Augustine Kubende (1986) eKLR, and submitted that mistakes of counsel should not be visited upon litigants and that the Court should lean towards determining matters on their merits.Counsel reiterated that the delay herein is minimal and has been explained, and that the intended appeal is not frivolous, particularly in light of the survey reports, which, in their view, did not establish encroachment. 5.The learned counsel for the Respondent filed their submissions dated 28th January 2026, submitting inter alia that the Applicants have failed to satisfy the threshold for extension of time. He argues that the reasons advanced do not fall within the principles set out in the case of Mwangi versus Kenya Airways Ltd (2003) eKLR and that the Applicants have demonstrated a lack of diligence.He further emphasized the need for finality in litigation, and submitted that the Court should not exercise its discretion in favor of a party who has been indolent, particularly in a matter that has been pending for over thirteen years. 6.From the foregoing, the issues that arise for the court’s determination are as follows:a.Whether the Applicants have established good and sufficient cause to warrant extension of time to file an appeal out of time under Section 79G of the Civil Procedure Act.b.Whether the Applicants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.c.What orders should be made as to costs? 7.The court has carefully considered the grounds on the notice of motion, affidavit evidence, submissions by the learned counsel, superior court decisions, the record and come to the following conclusions:a.On issue (a), Section 79G of the Civil Procedure Act requires that an appeal from a subordinate court shall be filed within thirty days from the date of the decree or order appealed against, but permits the Court to admit an appeal out of time if the appellant satisfies the Court that he had “good and sufficient cause” for not filing the appeal in time.This Section provides:“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 to the appellant 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.”b.The principles governing the exercise of that discretion were restated by the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR, where the Court emphasized that extension of time is an equitable remedy to be granted on a case-by-case basis, upon consideration of, inter alia, the length of delay, the reason for the delay, the degree of prejudice, and the overall interests of justice. The Supreme Court held that:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.… We derive the following as the underlying principles that a Court should consider in exercising 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 a reasonable cause for the delay, the same should be expressed to the satisfaction of the Court;5.Whether there will be any prejudice suffered by the respondents if extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time”c.Regarding the length of the delay, the judgment sought to be appealed from was entered on 11th September 2025. The present application was filed on October 23, 2025. The delay is therefore slightly under one month beyond the statutory period. In the circumstances of this case, such a delay cannot be said to be inordinate.Regarding the reason for the delay, the Applicants' explanation is that there was a delay in uploading the judgment, which was completed on 3rd October 2025, and that thereafter, counsel inadvertently failed to file the appeal due to a mix-up of files. While the delay in uploading the judgment has not been controverted, the explanation relating to counsel’s inadvertence is not supported by any documentary evidence demonstrating instructions or follow-up. This Court is therefore not persuaded that the explanation for the delay is entirely satisfactory.d.However, as was observed in the case of Mwangi versus Kenya Airways Ltd (2003) eKLR, the Court must consider all relevant factors and not merely the explanation for delay in isolation.Regarding Counsel’s mistake, this Court must balance the principle in the case of Philip Keipto Chemwolo & Another versus Augustine Kubende (1986) eKLR, that mistakes of counsel should not necessarily be visited upon a litigant, with the position taken in the case of George Kang’ethe Waruhiu versus Esther Nyamweru Munene & Another (2021) eKLR, that litigants bear a duty to follow up on their cases.In the present case, although the Applicants have not demonstrated diligent follow-up immediately after delivery of judgment, they did move with promptitude once the omission was discovered on 21st October 2025.e.The Applicants have annexed a draft memorandum of appeal which raises, among other issues, the question whether the trial court’s finding of encroachment was supported by the evidence, particularly in light of the survey reports referenced by both parties. Without delving into the merits, this Court is satisfied that the intended appeal is not frivolous.f.The Respondent’s allegations regarding fabrication or reproduction of survey reports raise serious evidentiary issues, but these are matters that properly fall for consideration on appeal and cannot be conclusively determined at this stage. The Respondent has also demonstrated that he has been engaged in this dispute for a considerable period and is entitled to the fruits of his judgment.g.On the other hand, the Applicants have demonstrated that execution of the judgment may entail demolition of permanent structures, which would occasion substantial and possibly irreversible loss. In balancing these competing considerations, the Court is guided by the principle that the right of appeal is a substantive right and that, where possible, disputes ought to be determined on their merits, provided that the opposing party is not subjected to undue prejudice.Taking into account the relatively short delay, the existence of arguable grounds of appeal, and the risk of substantial prejudice to the Applicants, this Court is persuaded that, notwithstanding the less than satisfactory explanation for delay, this is a proper case for the exercise of discretion in favour of the Applicants.h.On issue (b), the principles governing the grant of stay of execution pending appeal are as set under Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant must demonstrate:i.That substantial loss may result unless the order is made;ii.That the application has been brought without unreasonable delay; andiii.That such security as the Court may order has been provided.These conditions are conjunctive and must be satisfied before the Court can exercise its discretion. The cornerstone of the jurisdiction is substantial loss.In the case of Kenya Shell Limited versus Benjamin Karuga Kibiru & Another (1986) eKLR, the Court of Appeal held that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.The Applicants’ apprehension is that execution of the impugned judgment may result in demolition of permanent structures erected on the suit properties. That assertion is not merely speculative.i.The judgment of the lower court directed the removal of structures said to encroach onto the Respondents’ parcels. Execution, therefore, carries with it the real and immediate risk of physical alteration of the suit properties. Demolition of structures, particularly those said to have existed for a considerable period, constitutes a form of loss that is not easily reversible. Once undertaken, the substratum of the dispute is fundamentally altered. Even if the appeal were to succeed, restoration to the original state may be impracticable, if not impossible. In the circumstances, this Court is satisfied that the Applicants have demonstrated the likelihood of substantial loss within the meaning of Order 42 Rule 6 of the Civil Procedure Rules.j.As already observed, the present application was filed within a period slightly under one month after lapse of the statutory period for filing an appeal. The delay, though not entirely satisfactorily explained, is not inordinate. More importantly, upon discovery of the omission, the Applicants moved the Court without further delay. In the circumstances, the requirement that the application be brought without unreasonable delay is satisfied.k.Order 42 Rule 6(2)(b) of the Civil Procedure Rules requires an applicant to furnish security for the due performance of the decree. While the Applicants have not expressly proposed specific security, the Court retains discretion to impose appropriate conditions to ensure that the Respondent is not prejudiced by the grant of stay. This is particularly so in a case such as the present, where the Respondent has a subsisting judgment in his favour and is entitled to protection against undue delay in its enforcement.l.The Court must ultimately balance two competing rights: the Respondent’s right to enjoy the fruits of his judgment, and the Applicants’ undoubted right of appeal.As was stated in the case of Butt versus Rent Restriction Tribunal (1982) eKLR, the power of the Court to grant a stay is discretionary. It should be exercised in such a manner as not to prevent an appeal, but also not to render the decree-holder’s rights illusory.In the present case, if the stay is declined and execution proceeds to the extent of demolition, the intended appeal, if successful, would be rendered largely academic. Conversely, if a stay is granted, the Respondent’s prejudice can be mitigated by an order for security and by expeditious prosecution of the appeal.In view of the demonstrated risk of substantial and irreversible loss, and in order to preserve the subject matter of the dispute pending appeal, this Court is satisfied that this is a proper case for the grant of a stay of execution, subject to appropriate conditions.m.Under Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya, costs follow the events unless where the court orders differently for good cause. In this application, though the applicants are successful, they will pay the costs, as it is their delay in filing the appeal in time that necessitated its filing. 8.Accordingly, the Court finds merit in the application and orders the following:a.Leave is hereby granted to the Applicants to file and serve an appeal out of time against the judgment delivered on 11th September 2025 in Kerugoya CMCC No. 176 of 2014, within the timelines set out here below.b.The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date hereof.c.That the Record of Appeal shall be filed and served within sixty (60) days from today.d.There shall be a conditional stay of execution of the judgment and decree in Kerugoya CMCC No. 176 of 2014 pending the hearing and determination of the appeal.e.That the Applicants to deposit a sum of Kshs.200,000 [two hundred thousand] as security for the due performance of the decree in an interest-earning bank account in the joint names of the parties’ counsel or with the court within thirty (30) days from today, and in default the stay order to lapse automatically.f.The Applicants shall pay the Respondent’s costs of the application.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF MAY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Applicants – Mr. Nyaga for Maina KagioRespondent – Mr. ChombaKinyua/Charles - Court AssistantS. M. KIBUNJAELC JUDGE