https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3038

Muinamia v Wainaina (Environment and Land Miscellaneous Application E063 of 2025) [2026] KEELC 3038 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3038 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Miscellaneous Application E063 of 2025 JA Mogeni, J May 19, 2026 Between John Ndungu Muinamia Applicant and Dominic Mbugua Wainaina Respondent Ruling 1.This Application dated 04/07/2025 is filed pursuant to Section 1A, 1B, 3A, 63 (e), 79G and 95 of the Civil Procedure Act Cap 21 and Order 42 Rule 6 (1), Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant seeks the following orders:1.Spent.2.That pending the hearing and determination of this application, this Honourable Court be pleased to grant a stay of execution of the Judgment delivered on 22nd August 2023 and all consequential orders, including any warrants directing the OCS Kikuyu Police Station to oversee the eviction and demolition of structures on Parcel No. Karai/Lusigitti/T.1158.3.That the proposed Appellant be granted leave to appeal out of time against the whole Judgement of the Senior Resident Magistrate’s Court at Kikuyu delivered on 22nd August, 2023.4.That the Honourable Court be pleased to order stay of execution of the Eviction Order issued in Kikuyu Principal Magistrate’s Court Civil Suit No. 45 of 2015, Dominic Mbugua Wainaina Vs Ndungu Kiuna pending the hearing and determination of the intended appeal.5.That the annexed Memorandum of Appeal be deemed as duly filed and served upon payment of the requisite fees.6.That the Honorable Court be pleased to grant any such orders as it may deem fit and just to grant.7.That the costs of this application to abide the outcome of the intended appeal herein. 2.The Application is based on the grounds enumerated as (a) to (h) on the face of the application and supported by the Affidavit of Alex Kimani Waweru sworn on 4/07/2025. 3.The deponent, Alex Kimani Waweru, an Advocate of the High Court of Kenya practising under Messrs. Kimani & Company Advocates, swears this Affidavit on the basis of personal conduct of the file and information received from the Proposed Appellant. He depones that upon receiving instructions from the Proposed Appellant's family in or about December 2024, following imminent eviction from his long-time homestead, he wrote to the Executive Officer of the Kikuyu Principal Magistrate's Court seeking leave to peruse the Court file in Civil Suit No. 45 of 2015, a copy of which letter is annexed hereto and marked "AKW-1(a) and (b)". 4.That upon perusal, he established that the Proposed Appellant had been an Interested Party in Kikuyu CMCC No. 45 of 2015, where Judgment was delivered on 22/08/2023, and that he had been represented by one Edwin Warui Maina, Advocate, a copy of the said Judgment and proceedings being annexed and marked "AKW-2". That the trial proceeded to conclusion, with the Respondent closing their case on 25/04/2023 and the Proposed Appellant testifying on 12/05/2023, after which Judgment was reserved. The said Judgment granted the Respondent vacant possession of Parcel No. Karai/Lusigitti/T.1158 within sixty (60) days, together with orders for removal of structures, general damages for trespass in the sum of Kshs. 500,000, and costs with interest at Court rates. 5.The deponent further deposes that from the time Judgment was delivered, the former Advocate, Edwin Warui Maina, made no effort whatsoever to communicate the outcome to the Proposed Appellant, and that all subsequent attempts to reach him through known telephone contacts and his previous place of work proved entirely futile. 6.The Proposed Appellant remained wholly unaware of the Judgment until December 2024, when he was served with eviction orders by Wiskam Auctioneers accompanied by Officers from Kikuyu Police Station, requiring him to vacate the suit property pursuant to a Court Order dated 25/04/2024, a copy of which is annexed and marked "AKW-3". Upon learning of this, the deponent's firm filed an application before the trial Court seeking stay of execution and orders maintaining the status quo, which was allowed on 23/12/2024 but subsequently dismissed on 27/02/2025, copies of the said order and pleadings being annexed and marked "AKW-4(A) & (B)". The deponent further confirms that he has since obtained certified copies of the Judgment and proceedings and has prepared a draft Memorandum of Appeal setting out the grounds upon which the intended appeal is premised, a copy whereof is annexed and marked "AKW-5". 7.The deponent additionally brings to the Court's attention the fact that the Proposed Appellant is also the Plaintiff in Kikuyu ELC Case No. MCL 27 of 2023, a suit concerning the same parcel of land and involving the same parties, in which he seeks a declaration of ownership, cancellation of the Respondent's title on grounds of fraud, and a permanent injunction against interference with his possession, copies of the pleadings and relevant documents filed in that suit being annexed and marked "AKW-6". The Proposed Appellant has been in occupation of the suit land for over fifty (50) years and, being an elderly layperson with limited access to legal representation, stands to suffer grave prejudice including eviction and demolition of his family home if leave to appeal out of time is not granted. The deponent contends that the delay is solely attributable to the professional neglect of former Counsel, is not inordinate, and that no prejudice will be suffered by the Respondent, urging that the interests of justice favour the granting of the orders sought. 8.The Application is opposed by the Respondent who filed a Replying Affidavit sworn on 22/07/2025. In opposing the Application, the deponent, Dominic Mbugua Wainaina, depones, on the advice of his Advocates which advice he confirms to be true, that the application discloses none of the established principles governing leave to appeal out of time and stay of execution pending appeal. He contends that the delay of two years and nine months since Judgment was delivered on 22/08/2023 is unreasonable and inordinate. 9.Furthermore, he draws the Court's attention to a fundamental inconsistency in the Proposed Appellant's case, namely that Annexure “AKW-1(b)” is a letter dated 23/12/2023 in which the Proposed Appellant's Counsel sought to peruse the Court file, which directly contradicts the averment that instructions were only received in December 2024. The deponent further contends that even accepting the Proposed Appellant's account at face value, the present application was not filed until 9/07/2025, being seven (7) months after the alleged discovery of the Judgment in December 2024, which delay is itself unreasonable and inordinate. 10.The deponent proceeds to set out the history of the suit to demonstrate the Proposed Appellant's pattern of conduct. He depones that the suit was filed in February 2015 and that Judgment was delivered in his favour on 27/06/2016, with the Court declaring him the lawful owner of Parcel No. Karai/Lusigitti/T.1158 and awarding him Kshs. 100,000 damages for trespass, a copy of the order issued on 30/09/2016 being annexed and marked "DMW1". 11.Eviction orders were subsequently obtained on 23/01/2018, 20/02/2018, and 28/05/2019, copies whereof are annexed and marked "DMW2 & 3", all of which the Proposed Appellant frustrated. Upon service of the order dated 28/05/2019, the Proposed Appellant filed an application for setting aside dated 18/06/2019 which he abandoned, a copy of the consequent order being annexed and marked "DMW4", and thereafter filed yet another application on 20/06/2019 seeking to set aside the ex-parte Judgment and mount a Defence, a copy whereof is annexed and marked "DMW5", in which he confirmed service of earlier orders and whose identity documents confirmed him to be the same person as the Defendant. 12.That the Respondent subsequently filed a Statement of Defence dated 8/11/2019 and a witness statement dated 26/11/2019, copies whereof are annexed and marked "DMW6 & 7". Following joinder as an Interested Party pursuant to an application dated 2/07/2021, a copy of which is annexed and marked "DMW8", the Proposed Appellant filed a further application dated 11/05/2023 seeking stay of proceedings, annexed and marked "DMW9", which he never prosecuted. Judgment was ultimately delivered on 22/08/2023 in the presence of both parties' Counsel, a copy of the resultant order being annexed and marked "DMW10". 13.The deponent further deposes that following Judgment, the Proposed Appellant filed suit in Thika ELCOS No. E010 of 2023 seeking issuance of title to the suit property, which suit was dismissed by the Superior Court on 9/12/2024, a copy of the Ruling being annexed and marked "DMW11". He thereafter filed an application dated 23/12/2024 seeking stay of execution, falsely averring that the eviction application had not been served upon him, copies of Affidavits of Service being annexed and marked "DMW12 & 13", and at that time raised no complaint against his former Advocate, confirming in the deponent's submission that the allegations against Mr. Maina are a subsequent fabrication. 14.At the same time, the Proposed Appellant is also before the Kikuyu Magistrates' Court in MCELC No. 27 of 2023 seeking a declaration over the same parcel, a copy of the Plaint being annexed and marked "DMW14". The deponent contends that the Proposed Appellant is a perennial abuser of Court process who has continued to utilise the suit property without any right known in law since Judgment was entered, has not paid the sums awarded, and is merely seeking to delay the fruits of Judgment through multiplicity of proceedings. He accordingly urges the Court to dismiss the application with costs. 15.The Applicant filed a Further Affidavit dated 30/10/2025 in response to the Respondent’s Replying Affidavit and denies that the delay of two years and nine months is inordinate, maintaining that it arose solely from circumstances entirely outside his control, namely the failure of his former Advocate to communicate the outcome of the proceedings and the steps that followed. He further denies the alleged inconsistency regarding the date upon which his current Counsel received instructions, deposing that instructions were given promptly upon his discovery that the Judgment had been executed against him and that all steps thereafter were taken without undue delay. 16.He equally denies the suggestion that he failed to follow up on the perusal of the Court file, attributing any perceived delay to procedural and administrative processes rather than any inaction on his part. The characterization of the application as an exercise in forum shopping and an abuse of Court process is also denied, the deponent deposing that the application is directed at the protection of his constitutional rights over property and occupation, and that his exercise of the right of appeal is legitimate. He further denies the allegations that he is a crafty or dishonest litigant, maintaining that he has at all material times acted in good faith and in accordance with legal advice, properly disclosing all relevant facts to his current Counsel. 17.The deponent further deposes that the Respondent's reliance on the procedural history of the suit to suggest that he is barred from appeal is misplaced, as the trial Court incorrectly treated a dispute that properly falls under the exclusive jurisdiction of the Environment and Land Court as an ordinary civil matter. 18.He denies that the multiple applications filed in the course of the proceedings were aimed at delaying execution, maintaining that each filing was necessary to safeguard his rights pending resolution of the substantive questions of ownership and occupation of the suit property. He equally denies that he continued to occupy the suit property without any right or interest known in law, deposing that he has been in lawful occupation of the land since 1992 on the basis of legitimate and registered interests. 19.He reiterates that the intended appeal raises substantial questions of law and fact touching on ownership, possession, and fraud which call for appellate determination, and contends that the Respondent stands to suffer no prejudice if leave to appeal out of time and stay of execution are granted, whereas he himself stands to suffer irreparable harm, including eviction and loss of his property rights, if the orders sought are refused. 20.The Application was canvassed by way of written submissions. My perusal of the CTS did not produce any results relating to filing of the Applicant’s written submissions. On the other hand, however, the Respondent filed theirs dated 13/02/2026 which I have read and considered in writing this Ruling. Analysis and Determination 21.I have read the application, the Replying Affidavit, and the Further Affidavit in response, together with the written submissions filed by the Respondent. From the totality of the material before me, three issues crystallise for determination:1.Whether the Proposed Appellant has demonstrated sufficient cause to warrant the grant of leave to appeal out of time;2.Whether a stay of execution of the Judgment delivered on 22/08/2023 and the consequential eviction orders ought to issue pending the intended appeal; and3.Whether the conduct of the Proposed Appellant in these and related proceedings amounts to an abuse of the process of this Court. 22.On the first issue, the law governing leave to appeal out of time is well settled. Section 79G of the Civil Procedure Act provides that every appeal from a Subordinate Court shall be filed within thirty (30) days of the Decree or Order appealed against. Where that period has lapsed, the Appellant must satisfy the Court that there was sufficient cause for the delay. The Courts have consistently held that the overriding consideration is whether the delay has been satisfactorily explained and whether the intended appeal has arguable merit. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court of Kenya, speaking through Ibrahim, SCJ, set out the principles applicable to extension of time thus:“The following is a summary of the principles that should guide a Court in exercise of its discretion to extend time: 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 for extension of time has the burden of laying a basis to the satisfaction of the Court; whether 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 such other factors as the Court may deem relevant." 23.In the present matter, the Proposed Appellant attributes a delay of approximately two years and nine months to the professional neglect of his former Advocate who, he contends, never communicated the outcome of the proceedings. That explanation, on its face, raises a serious question. However, the Respondent has pointed to Annexure “AKW-1(b)”, being a letter dated 23/12/2023 in which the Proposed Appellant's current Counsel sought to peruse the Court file, and this sits in direct tension with the averment that instructions were only received in December 2024, a full year later. 24.No satisfactory explanation has been offered for this discrepancy and the Further Affidavit in response does not address it. Beyond this, even accepting December 2024 as the moment of discovery, the present application was not filed until July 2025, being some seven (7) months thereafter, and once again, no adequate explanation is tendered for that further period of inaction. Awal Limited v Malonza & Another (2025): The Court noted that the Applicant moved to Court 7 months after becoming aware of the Judgment and 5 months after obtaining a copy, emphasizing that the entire period must be explained. Further in Marwa v Chacha (2025): While discussing a longer delay, the Court reiterated that unexplained delays specifically mentioning 3 months in one instance are inordinate and that Applicants must act with diligence. 25.The Court of Appeal in Marwa v Chacha (Civil Appeal (Application) 103 of 2020) [2025] KECA 2151 (KLR) (1 December 2025) (Ruling) stated as follows:8.This Court has consistently held that unexplained delays are fatal. For instance, in Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, extension was refused where delay lacked explanation. The Applicant’s omission to explain the delay demonstrates negligence and lack of diligence, which this Court has repeatedly declined to excuse. It has also been averred and not contested by the Applicant that the Respondent had severally demanded to be served with the Record of Appeal to no avail. That the Applicant was only awoken from his deep slumber after he was served with the application seeking to strike out the Record of Appeal as aforesaid. Such conduct, in my view and as correctly submitted by the Respondent disentitles the Applicant to the Court's equitable discretion.9.The explanation for the delay being that the Applicant was led down by counsel does not sell. Of course, l am aware that in Kenyan law, the general principle is that the mistakes of counsel should not be visited upon an innocent litigant. However, Courts may hold a litigant responsible (i.e “visit the sins of counsel upon a litigant”) when the litigant fails to demonstrate due diligence and personal responsibility in following up on their case. Indeed, in the case of Karinga Gaciani & 11 Others v Ndege Kabibi Kimanga & Another, Civil Application No E004 of 2023, the Supreme Court of Kenya stated thus: “…it is not enough for a party to simply blame the Advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel and it does not matter whether the party is literate or not”. This is a clear case, in my view, of the Applicant’s indolence which this Court should not countenance.10.I am also tempted to agree with the Respondent’s observation that this application is meant to pull the rack under the feet of the Respondent. The Applicant only presented this application after being served with the Respondent's application to strike out the Record of Appeal. It is therefore obvious the application is reactionary, an afterthought, and intended to defeat the Respondent's substantive application. In Patrick Kiruja Kithinji v Victor Mugira Marete [2015] eKLR, the Court held that delay cannot be cured by filing an application only after being confronted with a striking-out motion. 26.The Court of Appeal has consistently held that unexplained delays are fatal. 27.On the second issue, the principles governing stay of execution pending appeal are those the Courts have repeatedly affirmed under Order 42 Rule 6 of the Civil Procedure Rules. 28.The Applicant must demonstrate a prima facie arguable ground of appeal, show that unless stay is granted the appeal will be rendered nugatory, and satisfy the Court that the application has been brought without undue delay. In Butt v Rent Restriction Tribunal [1982] KLR 417, the Court of Appeal, per Madan JA, held that a Court in exercise of the discretion to grant stay ought to consider:-“Whether there is a reasonable possibility of success of the appeal, the need to prevent irreparable injury, the question of balance of convenience, and whether the subject matter of the appeal will be preserved." 29.The position is on its face sympathetic to the Proposed Appellant, who faces eviction from what he describes as a homestead of over fifty (50) years. However, the Court cannot shut its eyes to the history of this litigation. The Respondent obtained Judgment in his favour as far back as 27/06/2016. Eviction orders were obtained on three separate occasions in 2018 and 2019 and were frustrated each time. The Proposed Appellant was joined as an Interested Party, participated in the retrial through Counsel, and Judgment was delivered in the presence of both parties' Advocates on 22/08/2023. He thereafter filed proceedings in Thika ELCOS No. E010 of 2023 which were dismissed on 9/12/2024, and simultaneously instituted Kikuyu MCELC No. 27 of 2023 raising the same question of ownership before a parallel Court. 30.In Equity Bank Limited v West Link MBO Limited [2013] eKLR, the Court of Appeal held that a Court ought not to grant a stay of execution where the Applicant is merely seeking to delay the inevitable and where the history of the matter reveals a pattern of deliberate obstruction of the fruits of a Judgment lawfully obtained. That principle has direct application here. The Respondent has been deprived of the fruits of a Judgment now approaching a decade in age, and the multiplicity of proceedings filed by the Proposed Appellant, each at the precise moment enforcement is imminent, bears the character of systemic delay rather than genuine pursuit of legal rights. 31.On the third issue, the question of abuse of process must be addressed candidly. The filing of parallel suits in the Magistrates' Court ELC and the Environment and Land Court raising identical questions of ownership over the same parcel of land, while simultaneously seeking to reopen proceedings that were concluded after full participation, constitutes precisely the kind of multiplicity of proceedings that the Courts have deprecated as an abuse of process. In Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & Others [2017] eKLR, Maraga CJ, as he then was, reaffirmed the principle that the right of access to justice does not extend to repeated recourse to the Courts over matters already determined, and that the public interest in finality of litigation must be protected by the Court's power to restrain abuse of its processes. The Proposed Appellant's further averment that the Magistrates' Court wrongly assumed jurisdiction over what is properly an Environment and Land Court matter has no merit since he himself is the Plaintiff in MCELC No. 27 of 2023 before the same Subordinate ELC, and he participated without objection in the very proceedings whose outcome he now seeks to impugn. The argument as to jurisdiction is accordingly an afterthought and cannot be credited especially owing to the fact that it was not a subject of litigation in the Subordinate Court. 32.Having considered the foregoing analysis, I am constrained to observe that the delay of approximately two years and nine months since the delivery of Judgment on 22/08/2023 is inordinate and has not been satisfactorily explained, there being a material inconsistency between the averment that instructions were received in December 2024 and the letter dated 23/12/2023 annexing an earlier request for file perusal, which inconsistency has not been adequately addressed in the Further Affidavit. 33.Even if I was to accept the Proposed Appellant's account, the further delay of approximately seven months between December 2024 and the filing of the present application in July 2025 has equally not been explained to the satisfaction of this Court. 34.The Proposed Appellant has not demonstrated that the intended appeal raises arguable grounds sufficient to found a grant of leave, particularly in circumstances where he was represented by Counsel at trial and participated fully in the proceedings that produced the impugned Judgment. 35.The history of this litigation, spanning from 2015 to the present, discloses a consistent pattern of frustrating the enforcement of Judgments obtained by the Respondent through the filing of successive applications and parallel proceedings at each stage of imminent execution, and this Court is not prepared to countenance a further extension of that pattern. 36.The filing of parallel proceedings in Kikuyu MCELC No. 27 of 2023 raising substantially the same issues as the suit already conclusively determined by the lower Court constitutes an abuse of the process of this Court, and the Proposed Appellant cannot invoke the equitable jurisdiction of this Court while himself standing in breach of the principle that a litigant must come to equity with clean hands. 37.I do therefore make the following orders:i.The application for leave to appeal out of time is hereby dismissed.ii.The application for stay of execution of the Judgment delivered on 22/08/2023 and all consequential eviction orders is hereby dismissed.iii.The costs of this application are awarded to the Respondent.It so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 19TH DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Applicant – AbsentMr. Ondago holding brief for Mr. Kimathi for the RespondentMr. Melita - Court Assistant………………………MOGENI JJUDGE