https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3808

Mukewa v Namurwe & 2 others (Environment and Land Appeal E009 of 2026) [2026] KEELC 3808 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3808 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Appeal E009 of 2026 AK Bor, J June 4, 2026 Between David Fabian Mukewa Plaintiff and Kombo Rashid Namurwe 1st Defendant Donald Alukonya 2nd Defendant Alex Chogo Amoi 3rd Defendant Ruling 1.The applicant brought the application dated 10/3/2026 seeking to have this court extend the time within which he should file and serve a notice of appeal against the judgment and decree of Hon. J.W. Gichimu on 2/12/2025. He also sought stay of execution of the judgment and decree dated 4/3/2026 pending hearing and determination of the appeal. The other prayers sought are for this court to order the transfer of the file from the trial court of Bungoma MCELC 32 of 2022 to this court in place of the record of appeal and for this court to deem the memorandum of appeal annexed to the application as properly filed. 2.The application is premised on grounds that the applicant intends to appeal against the judgment rendered by Hon. J.W. Gichimu vide which the titles he transferred to the 2nd and 3rd Respondent were cancelled and he was ordered to pay damages. It is contended that the intended appeal has high chances of success because the Learned Magistrate was bereaved(sic) of jurisdiction by reason of res judicata and incapable of issuing the orders that he made. 3.The applicant explained that the delay in filing the notice of appeal and the appeal was occasioned by the fact that he was acting in person and was not served with the judgment notice. Additionally, that the judgment posted on the court virtual platform was neither dated nor signed as required by law and hence incapable of being appealed against. He added that the decree indicated on the face of it that counsel for the litigant were not in court when the decision was rendered. He stated that the 2nd and 3rd Respondents were likely to suffer irreparable harm and damage because they had developed the suit land and were in occupation. 4.Aggrey Opunga, an advocate representing the Appellant swore the supporting affidavit in which he reiterated that the judgment appearing on the court virtual system was neither dated nor signed. He annexed a copy of the draft memorandum of appeal together with the judgment as well as the ruling dated 24/6/2021 in Bungoma ELC Case No. 164 of 2014. He also exhibited copies of a notice of appeal and his letter to court dated 18/12/2025 seeking copies of the typed proceedings and the judgment delivered on 2/12/2025. 5.The 1st Respondent deponed in his further replying affidavit that after the judgment was delivered in Bungoma ELC Case 164 of 2014 on 15/11/2018, the applicant applied for review and the court’s ruling is what gave rise to the amended decree dated 18/12/2018. 6.In the further affidavit sworn by Aggrey Opunga, he deponed that when he was served the application dated 26/3/2026 in ELC No. E049 of 2025 filed by the advocates for the 2nd and 3rd Respondents is the time he learned that another appeal had been lodged. 7.The application was canvassed through written submissions. The Appellant submitted that he had learnt that the 2nd and 3rd Respondents had lodged an appeal against the same decision made by the Learned Magistrate. He submitted that the 2nd and 3rd Respondents did not oppose his application. He maintained that the judgment notice was not served and that the 1st Respondent had introduced new issues which he had not pleaded in the affidavit. 8.The Appellant relied on Section 79 G of the Civil Procedure Act on the timelines for lodging an appeal to the High Court. He argued that he could not rely on the judgment delivered in December 2025 because it was undated and unsigned and that in effect it offended Order 21 Rule 3 of the Civil Procedure Rules. Regarding delay, he argued that he moved with speed to seek leave to appeal and stay execution on 20/3/2026 once he came across the decree dated 4/3/2026. He blamed the delay on the court for not issuing him a certified copy of the judgment. 9.Regarding stay of execution, he submitted that he had demonstrated that he had an arguable appeal with high chances of success and that the 1st Respondent was holding a decree from the trial court which could allow him transfer the land. He added that no security could be required of him because the 1st Respondent held a decree that allowed him to transfer the suit land to his name. 10.The 1st Respondent submitted that counsel for the Appellant was not competent to depone to contested facts. He argued that paragraphs 5, 6 and 9 of the replying affidavit sworn by the counsel were defective and devoid of probative value. He elaborated that it was trite law that an advocate ought not to depone to contentious matters of fact as the advocate had purported to do in this case by addressing issues such as lack of service of the notice of judgment, validity of the judgment and occupation of the suit land. He argued that this offended Order 19 Rule 3 of the Civil Procedure Rules and that the offending paragraphs should be expunged. 11.The 1st Respondent submitted that there was inordinate delay in bringing this application because judgment was delivered on 2/12/2025 while the application was filed on 10/3/2026. He elaborated that the applicant was aware of the judgment on 18/12/2025 but did not take any steps to lodge the appeal. He argued that Order 42 Rule 6 of the Civil Procedure Rules presupposed the existence of a competent appeal yet the applicant had not filed a memorandum of appeal and instead was relying on the notice of appeal. He contended that there was no substratum upon which an order for stay could issue. He argued that the applicant had not demonstrated any substantial loss and that he had not offered security for the due performance of the decree. 12.According to the 1st Respondent, the intended appeal was not arguable because the issue of adverse possession was conclusively determined in Bungoma ELC Case No. 164 of 2014 and the new case was instituted to enforce the decree from the High Court against new parties and the new title. 13.The issue for determination is whether this court should grant the applicant leave to lodge his appeal out of time and whether the court should stay the execution of the judgment and decree dated 4/3/2026 against the Appellant pending hearing and determination of the appeal. 14.There is no basis for this court to order the transfer of the court file in respect of Bungoma MC ELC No. 32 of 2022 to be submitted to this court in place of record of appeal. Order 42 of the Civil Procedure Rules stipulates the documents required for the hearing of an appeal. 15.The main reason advanced by the Appellant for his failure to lodge the appeal within the statutory period was that he did not get a copy of the signed judgment and that he only relied on the decree, which was issued in March, 2026. Based on this contention, the court is inclined to extend time for the Appellant to lodge his appeal. 16.The court agrees with the 1st Respondent that contentious issues should not be deponed to by counsel for that is tantamount to the advocate entering the arena of conflict. It has not been demonstrated that the applicant will suffer substantial loss if stay is not granted. 17.The court grants prayer 2 of the application dated 10/3/2026. The Appellant is directed to file and serve his memorandum of appeal within 7 days from today. Costs shall be in the cause. DELIVERED VIRTUALLY AT BUNGOMA THIS 4TH DAY OF JUNE 2026.K. BORJUDGEIn the Presence of:-Mr. Aggrey Opunga for the AppellantMs. E. Nekesa holding brief for Mr. D. Kapten for the 1st RespondentCourt Assistants –Josphat Bett/Metrine Wanyonyi