https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3112

Mugwika v Kariri [Sued on His Own Behalf and as the Legal Representative of the Estate of the Late Samuel M’Imagana) & 3 others (Environment and Land Petition E001 of 2025) [2026] KEELC 3112 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 3112 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Petition E001 of 2025 JO Mboya, J May 18, 2026 Between Rufus JM Mugwika Petitioner and Isaiah Kariri [Sued on His Own Behalf and as the Legal Representative of the Estate of the Late Samuel M’Imagana) 1st Respondent District Land Adjudication and Settlement Officer 2nd Respondent Land Registrar Meru 3rd Respondent Hon Attorney General 4th Respondent Ruling 1.Before me is the Notice of Motion Application dated 23rd April, 2026, brought pursuant to Section 1A,1B and 3B of the Civil Procedure Act Cap 21 Laws of Kenya; Order 50 Rule 6; and Order 51 rule 1 of the Civil Procedure Rules 2010 and wherein the Petitioner/Applicant [herein after referred to as the Applicant] has sought the following reliefs.a.That the Honourable court be pleased to certify the Application urgent and service thereof be dispensed with.b.That the order of status quo be reinstated and extended pending interprets hearing and final determination of the Application.c.That this Honourable court be pleased to extend the timelines within which the applicant is required to deposit an undertaking in an escrow account in the names of advocates for the applicants and the 1st respondent as ordered on 24th February, 2026, by ninety (90) days. 2.The Application is premised on various grounds. The grounds are: The Applicant filed the subject petition as against the respondents; the petition was heard and disposed of vide Judgement of the court rendered on the 4th December, 2025; the petition was dismissed; and thereafter the applicant filed/ lodged a Notice of Appeal demonstrating intention to appeal to the Court of appeal. 3.Additionally, the Applicant has posited that; following the dismissal of the petition same filed an application for stay of execution/ injunction pending the hearing of the intended appeal; the application for stay of execution/ injunction was heard and disposed of vide ruling delivered on the 24th February, 2026; the application was allowed on terms; the applicant was unable to comply with the terms of the ruling of the court; the failure to comply with the terms was as a result of financial constrains; and the applicant Is now willing to comply with the terms of the ruling of the court. 4.Furthermore, the applicant had contended that: the 1st respondent is on the verge of alienating the suit property; there is a need to reinstate the orders of status quo; the failure to reinstate the orders of status quo shall put the substratum of the appeal in danger; and the applicant has established sufficient cause to warrant reinstatement of orders of status quo. 5.The subject application is supported by an affidavit sworn on the 23rd April, 2026. The averments in the subject affidavit reinforces/reaffirms the grounds at the foot of the application. In addition, the deponent of the supporting affidavit has annexed one document, namely; a copy of the ruling of the court delivered on the 24th February, 2026. 6.The 1st respondent filed a replying affidavit sworn on 5th May, 2026; and wherein the deponent has contended that the subject application does not raise or demonstrate sufficient cause to warrant the reinstatement of the orders of status quo and extension of time to open and operationalize the escrow account. In addition, it had been posited that the applicant herein has not demonstrated what steps, if any, that the applicant took to comply with the terms of the order. 7.Furthermore, it has been averred that the applicant herein merely sat back, waited for the time to lapse, and has now reverted to court on the assumption that the discretion of the court can issue for the mere asking. 8.Other than the foregoing, the 1st respondent has also posited that even though the applicant contends that the same experienced financial constraints, no evidence has been placed before the court to vindicate the said averment. To this end, it has been posited that the allegations of financial constraints has neither been demonstrated nor proved. 9.In a nutshell, the 1st respondent has invited court to find and hold that no basis has been established to warrant the exercise of discretion in favor of the applicant. Further, and in any event, it has been contended that equity only aids the vigilant and not the indolent. 10.The 2nd, 3rd and 4th Respondents filed grounds of opposition dated 8th May, 2026. The named respondents have contended that the subject application is pre mature, misconceived and otherwise constituted an abuse of due process of court. 11.The subject application came up for hearing on 14th May, 2026; where upon the advocates for the respective parties intimated that same were ready to prosecute the application. The court proceeded to and issued directions. The directions were that the application was to be canvassed and disposed of by way of oral submissions. 12.Learned counsel for the applicant adopted the ground[s] at the foot of the application, reiterated the contents of the supporting affidavit and thereafter highlighted three [3] issues. The issues were: The applicant was prevented from complying with the terms of the court order on the basis of financial constraints; the applicant is now willing to comply with the terms of the court order; and the applicant has established sufficient cause/ basis to warrant extension of time to comply with the orders and reinstatement of the orders of status quo. 13.In addition, learned counsel for the applicant has submitted that unless the orders sought are granted the 1st respondent shall proceed to alienate or dispose of the suit property and that such actions [unless restrained] shall interfere with the substratum of the intended appeal. Counsel further invited the court to exercise its unfettered discretion in an endeavor to protect the property rights and interests of the applicant. 14.To buttress the submissions that the court has unfettered discretion to extend time, and that the applicant has established a basis for the exercise of the discretion, learned counsel for the applicant has referenced inter alia the decision in Patel vs East Africa Cargo Handlers limited 1974 EA and Shah Vs Mbogo 1967 EA, respectively. 15.Learned counsel for the 1st respondent adopted the contents of the replying affidavit sworn on 5th May, 2026; and thereafter highlighted three [3] key issues. The issues are: The applicant has neither established nor demonstrated sufficient cause to warrant exercise of discretion in his favor; the applicant has not proven the alleged financial constraints; the applicant’s conduct does not meet the threshold of equity or at all. 16.Furthermore, learned counsel for the 1st respondent has submitted that the applicant herein has not highlighted the steps, [if any], that same took towards complying of the terms of the orders of the court. On the contrary, it has been posited that the applicant merely sat back, waited for the time to lapse and has thereafter sprung back to court albeit without exercise of due diligence. 17.Learned counsel for 2nd, 3rd and 4th respondent [herein after referred to as named respondents] has adopted the grounds of opposition dated 8th May, 2026; and thereafter canvassed two [2] issues. The issues are; The applicant has not demonstrated sufficient cause to enable same partake of the discretion of the court; and the application is merely intended to frustrate the realization of the fruits of the judgement of the court. 18.Having reviewed the Notice of Motion application; the supporting affidavit thereto; the responses by/ on behalf of the respondents; and upon taking into account the submissions on behalf of the parties, one singular issue crystalize[s] for determination. The issue is: Whether the applicant has established/ proven sufficient cause to warrant extension of time and reinstatement of the orders of status quo or otherwise. 19.The Applicant herein was privy to and aware of the terms of the court order made on the 24th February, 2026. In particular the applicant knew that same was obliged to procure the sum of Kshs 400,000/= Only, on account of undertaking as to damages and to facilitate the opening and operationalization of an escrow account. Further, and in addition, the applicant was alive to the set timelines. 20.Despite being alive to the terms of the orders of the court and the circumscribed timelines, the applicant failed to comply. The applicant is now back before this court seeking extension of time within which to comply; and reinstatement of the orders of status quo, which have since lapsed. 21.I beg to state that this court is seized of the discretion to extend/ enlarge time for complying with the terms of the orders of the court. Moreover, the discretion of the court is unfettered. In addition, the discretion is to be exercised in such a manner so as to avert injustice; hardship; or miscarriage of Justice being occasioned to the applicant. 22.Additionally, it must be stated that even though the court is imbued with unfettered discretion to extend time for the doing of an act, the exercise of the said discretion must be founded on good reason and sufficient cause. 23.It must be governed by reason and objectivity. The discretion must not be exercised whimsically, capriciously or on the basis of sympathy. Furthermore, the discretion is not based emotion[s]. Similarly, it does not issue for the mere asking. 24.It is not lost on me that extension of time is also not a right of a party. On the contrary, it is a privilege that can only be conferred upon deserving party subject to demonstration of sufficient cause; due diligence; and timeous action before the court. 25.I wish to highlight that whenever a part seeks to partake of equitable discretion of the court, such a party must approach the court in good faith and the reason being advanced must be honest and genuine. Notably, a party must not seek to mislead the court or ride on the basis of fanciful allegations; misrepresentation of facts; or deceit. [See Njoroge v Kimani [2022] KECA 1188 (KLR)]. 26.Has the applicant established sufficient cause? The singular reason or explanation which has been advanced by the applicant to underpin the exercise of discretion in his favor is to the effect that same [Applicant] experienced financial constraints and difficulty. The assertion as pertains to financial constraints has been alluded to at Paragraph 3 & 4 of the supporting affidavit. 27.Be that as it may, it is important to underscore that despite making the forgoing assertion/ averments, the applicant has not highlighted what are the financial constraint[s] that same underwent and what are the circumstances underpinning the said allegation. 28.Further, and in addition, there is no gainsaying that the applicant has also not demonstrated what steps, if any, same took towards meeting or complying with the terms of the court order. The applicant herein has merely thrown a blanket assertion / allegation[s] on the face of the court and left the court to internalize the term financial constraints; wander around; and to see how the applicant was affected with [sic] the alleged financial constraints. 29.I beg to state that the applicant’s Financial means [whatever they are] are matters / issues which are exceptionally and peculiarly within the knowledge of the applicant. It was therefore incumbent upon the applicant to place evidence of his means to enable the court interrogate same and discern whether any difficulty presented themselves to the applicant. [See section 112 of the Evidence Act Chapter 80 Laws of Kenya] 30.To my mind, it was incumbent upon the applicant to place before the court his bank statement, [if any], statements of account; or affidavit of means. This item[s] would have been helpful in ascertaining and interrogating the veracity of the assertions made by the applicant. Notably, Courts of Law act on evidence with probative value; and not belief[s]. 31.In the absence of any evidence or material to verify the averments contained in the body of the Supporting affidavit, the said averments remained unproven and un-substantiated. Same remained at the level of allegations. Consequently, the averments are devoid of probative value. 32.Where a party invokes financial constraints as a basis for seeking the discretion of court, such a party bears the burden of proving the assertion. The manner of proving the assertion was highlighted in the case of Eliud Buku Thuku v Beatrice Wambui Mwangi [2013] KECA 317 (KLR) where the Court of Appeal [Otieno Odek-JA as he then was] stated thus-:11.The applicant gives the reason for delay in filing the notice of appeal as financial constraints. No evidence has been given in support of this statement. It is not enough to allege financial constraints; an applicant must demonstrate the constraint either through production of a statement of financial means; lack of employment or absence of a source of income or such other means. 33.Bearing in mind the holding in the decision above, there is no gainsaying that the applicant was called upon to do much more than throwing the bare assertion[s] before the court. 34.Sadly, the applicant herein was contented with the bare assertions. Suffice it to state the contentment fails the threshold set by the provision of Section 112 of the Evidence Act, which require that the bearer of the burden must lay before the court material; or evidence to vindicate the assertion.[See the holding of the Supreme Court in the case of Munya v Kithinji & 2 others [2014] KESC 38 (KLR), at paragraphs 188 and 189, respectively]. 35.Finally, I wish to state that the duty of persuading the court to exercise its discretion in favor of the applicant rests on the applicant. Simply, the applicant bears the burden of proof. It must be discharged to the requisite standard, namely; a balance of probabilities. 36.Moreover, the elements to be established before a Court of Law can grant the prayer for extension of time, [if at all] were highlighted by the Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). The Supreme Court distilled the ingredients as follows:A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court wwhether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and whether, in certain cases, like election petitions, public interest should be a consideration for extending time. 37.Taking the foregoing into account, I am afraid that the applicant herein has not brought himself within the four corners of the ingredients that would enable same to benefit from the equitable discretion of the court. Suffice it to state that the discretion of the court does not issue for the mere asking of a party. Conclusion 38.I have considered the averments by the applicant and weighed same against the established principles of law, and I come to the conclusion that the applicant has not met the threshold for the exercise of equitable discretion in his favour. 39.Further and in addition, it is important to highlight that where orders of court have lapsed like in the instant case, such orders are dead. The orders are extinct. They are non-existent. In this regard, the orders cannot be reinstated either in the manner sought herein or at all. Final orders. 40.Flowing from the analysis highlighted elsewhere herein before, it is apparent that the application before the court is devoid of merits. In the premises, the final orders that commend themselves to the court are-:a.Application be and is hereby Dismissed.b.Cost of the Application be and is hereby awarded to the Respondents.c.The Costs under reference shall be agreed upon; and in default, same shall be taxed in the Conventional manner. 41.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU LAW COURT ON 18TH MAY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the Presence of-Mr. Zakayo- Court AssistantMs. Mugwe holding brief for Mr. Kariuki 1st RespondentMs. Miranda- Senior Litigation Counsel for the 2nd, 3rd 4th Respondents.N/A for the Petitioner/Applicant