Munyiva & another v Muema (Suing as next friend to Angeline Mbithe Mbithi) (Land Case Appeal E026 of 2026) [2026] KEELC 4015 (KLR) (2 July 2026) (Ruling)

Munyiva & another v Muema (Suing as next friend to Angeline Mbithe Mbithi) (Land Case Appeal E026 of 2026) [2026] KEELC 4015 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4015 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Land Case Appeal E026 of 2026 JN Kuyioni, J July 2, 2026 Between Margaret Munyiva 1st Appellant Kenneddy Mutua 2nd Appellant and mathew Muema (Suing as next friend to Angeline Mbithe Mbithi) Respondent Ruling Introduction 1.Before this Court is the Notice of Motion dated 10th May 2026 brought by the Applicants under Order 9 Rule 9 of the Civil Procedure Rules, Order 51 Rule 1, Civil Procedure Rules, Sections 3, 4(3) and 13 of the Environment and Land Court Act, Sections 1A, 1B and 2A of the Civil Procedure Act. The Applicants seeks Orders THAT:a.Spentb.The Honourable Court be pleased to issue an Order for the Counsel herein to come on record and be deemed duly appointed by the Appellant/Applicants herein.c.The Honourable Court do hereby issue an order to stay the execution of Orders issued in the Decree of the Honourable Court dated the 22nd day of May 2025 and the Ruling dated the 27th of January 2026 pending hearing and determination of the Appeal herein.d.The Honourable Court do hereby stay the proceedings in the trial court in the matter before the Chief Magistrates Court at Kangundo MCELC E039 of 2023 pending hearing and determination of the Appeal.e.The Honourable Court be pleased to grant the Appellants herein leave to file their Appeal out of time.f.The Honourable Court to consider the Memorandum of Appeal dated the 10th of May 2026 as duly filed and ready for consideration and determination by the Honourable Court.g.The Honourable Court be pleased to issue any other orders it may deem just and expedient.h.the costs be in the cause. 2.The Application is premised upon the grounds appearing on the Supporting Affidavit sworn by the 1st Applicant, Ms. Margaret Munyiva. 3.The Respondent opposes the application through the Replying Affidavit sworn on 3rd June 2026 by Ms. Gladys Gichuki. Background 4.The dispute herein arises from Kangundo Chief Magistrate's Court Environment and Land Case No. E039 of 2023, in which judgment was delivered on 22nd May 2025. Pursuant to the said judgment, a decree was extracted requiring, inter alia, the return of the Respondent's original title deed and payment of the costs of the suit. 5.Following the delivery of the judgment, the Applicants, on 9th October 2025, filed an application before the subordinate court seeking to set aside the ex parte judgment and for consequential orders of stay. 6.Upon considering the application, the learned trial magistrate delivered a ruling on 27th January 2026 dismissing the application with costs. The dispositive orders were as follows:a.That the Notice of Motion dated 9th October 2025 is hereby dismissed.b.The Applicants shall bear the costs of the application. 7.Aggrieved by the said ruling, the Applicants filed the present application seeking, among other reliefs, leave to appeal out of time, stay of execution of the decree arising from the ruling pending the intended appeal, stay of further proceedings before the subordinate court, and leave for their present advocates to come on record. 8.The Respondent further contends that the present Application was instituted notwithstanding that the Applicants had previously filed a similar application before the subordinate court relating to the execution of the decree, which application was still pending at the time. The Applicants' Case 9.The Applicants contend that they were not served with summons to enter appearance, the Plaint or the subsequent pleadings in the subordinate court and were therefore denied an opportunity to participate in the proceedings. They maintain that the learned magistrate erred in declining to set aside the ex parte judgment despite those complaints. 10.They further state that the delay in filing the appeal resulted from difficulties arising after the advocate previously handling the matter at FIDA Kenya ceased acting, leaving them without effective legal representation until they instructed their present advocates. 11.The Applicants contend that unless execution is stayed, the decree will be enforced before the intended appeal is heard, thereby prejudicing their intended appeal. They maintain that the intended appeal raises arguable issues, particularly regarding service of process and the refusal to set aside the ex parte judgment. The Respondent's Case 12.The Respondent opposes the application, maintaining that the Applicants were duly served with all the requisite court process and that the issue of service was conclusively determined by the subordinate court in its ruling of 27th January 2026. 13.The Respondent further contends that the Applicants have previously sought similar reliefs before the subordinate court and that another application relating to the execution process was pending when the present Application was filed. It is therefore argued that the present application amounts to an abuse of the court process. 14.Finally, the Respondent contends that the Applicants have not established sufficient cause for extension of time or satisfied the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. Analysis and Determination 15.I have considered the Notice of Motion, the affidavits, the parties' submissions, the authorities cited and the applicable law. In my view, the following issues arise for determination:a.Whether leave should be granted to the firm of Gachoki Muriuki & Associates Advocates to come on record for the Applicants after judgment.b.Whether the Applicants have established sufficient cause to warrant extension of time within which to lodge an appeal against the ruling delivered on 27th January 2026.c.Whether the Applicants have satisfied the conditions for the grant of stay of execution pending appeal.d.Whether the Applicants have established a basis for staying the proceedings before the subordinate court pending the determination of the appeal.e.What orders ought to issue as to costs. Leave to come on record 16.The first prayer in the Application is that it seeks leave for the firm of Gachoki Muriuki & Associates Advocates to come on record for the Applicants after judgment. 17.Order 9 Rule 9 of the Civil Procedure Rules requires that where there is a change of advocates after judgment has been passed, such change shall not be effected without an order of the court upon an application with notice to all parties or upon a consent filed between the outgoing and incoming advocates. The provision is intended to ensure an orderly transition of legal representation and to safeguard the interests of the outgoing advocate, particularly in relation to costs. 18.The question, however, is whether that requirement extends to proceedings commenced before an appellate court. In Tobias M. Wafubwa vs. Ben Butali 2017 (eKLR), the Court of Appeal drew a distinction between post-judgment proceedings before the trial court and proceedings commenced before an appellate court, holding that the latter constitute fresh proceedings rather than a continuation of the former. The Court stated:“Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.” 19.Applying that principle to the present case, the Applicants seek to commence proceedings in this Court challenging the ruling of the subordinate court. Those proceedings are separate and distinct from the proceedings in which judgment was entered before the subordinate court. It follows that the change of advocates does not attract the procedural requirements contemplated under Order 9 Rule 9 of the Civil Procedure Rules. 20.Accordingly, while leave under Order 9 Rule 9 of the Civil Procedure Rules was not strictly required in the circumstances of this case, the Applicants having sought such leave, I allow the prayer. Leave to Appeal out of time 21.The law governing appeals from subordinate courts is set out in section 79G of the Civil Procedure Act and specifically in relation to this Court, section 16A of the Environment and Land Court Act. Both provisions require that an appeal be lodged within thirty days from the date of the decree or order appealed against, excluding such time as the subordinate court may certify to have been requisite for the preparation and delivery of a copy of the decree or order. 22.The said provisions further vest the Court with discretion to admit an appeal out of time where the appellant demonstrates good and sufficient cause for the failure to file the appeal within the prescribed period. 23.The discretion to admit an appeal out of time is neither automatic nor unfettered. It is a judicial discretion which must be exercised on sound legal principles and upon consideration of the circumstances of each case. The burden rests upon an Applicant to demonstrate good and sufficient cause for the failure to lodge the appeal within the prescribed period. 24.The Supreme Court in Salat v The Independent Electoral and Boundaries Commission & 7 Others, [2014] KESC 12 (KLR) laid down the guiding principles for extension of time as follows:a.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;b.A party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;c.Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;d.Where there is a reasonable [cause] for the delay, [the same should be explained] to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents, if extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 25.In County Executive of Kisumu v County Government of Kisumu & 8 others, [2017] KESC 16 (KLR) The Supreme Court further emphasized the need for an applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. 26.Having set out the applicable legal principles, I now turn to consider whether the Applicants have established sufficient cause to warrant the exercise of the Court's discretion. Although the Applicants did not specifically address the prayer for extension of time in their written submissions, the Court must determine the issue from the pleadings, affidavits and the applicable law. 27.Although the Applicants seek leave to appeal out of time, they did not specifically address that prayer in their written submissions. In particular, they made no submissions on the length of the delay, the explanation for the delay or the principles governing the exercise of the Court's discretion. That omission notwithstanding, it remains the duty of the Court to determine the prayer on the basis of the pleadings, the affidavits on record and the applicable law. 28.The Respondent opposes the prayer for extension of time, contending that the explanation advanced for the delay is insufficient and does not constitute good and sufficient cause for the Court to exercise its discretion in favour of the Applicants. 29.The impugned ruling was delivered on 27th January 2026, while the present application was filed approximately three months later. The delay therefore called for a satisfactory explanation. 30.The explanation advanced by the Applicants is that they were previously represented by FIDA Kenya, that the advocate then handling the matter subsequently left the organisation and that they thereafter instructed their present advocates to act on their behalf. 31.Although it would have been preferable for the Applicants to place before the Court documentary material or other evidence explaining the circumstances surrounding the change of legal representation and the steps taken thereafter, I am not persuaded that the omission is, of itself, sufficient to defeat the application. The explanation advanced is plausible and falls to be considered together with the length of the delay, the prejudice to the Respondent, and all the other relevant circumstances of the case. 32.As regards prejudice, the Respondent has not demonstrated any specific prejudice that would be occasioned by the extension of time beyond the ordinary inconvenience attendant to litigation. Conversely, refusal to enlarge time would deny the Applicants the opportunity to challenge the ruling dismissing their application to set aside the ex parte judgment. 33.Taking all the relevant factors into account, including the length of the delay, the explanation advanced, the absence of demonstrated prejudice to the Respondent and the need to facilitate the determination of disputes on their merits where the interests of justice so require, I am satisfied that this is an appropriate case in which to exercise the Court's discretion in favour of the Applicants. 34.Accordingly, I find that the Applicants have demonstrated good and sufficient cause within the meaning of section 16A of the Environment and Land Court Act and section 79G of the Civil Procedure Act. The prayer for leave to appeal out of time is therefore allowed. Stay of Execution 35.The Applicants seek an order staying execution of the decree arising from the judgment delivered on 22nd May 2025. However, the intended appeal is directed against the ruling delivered on 27th January 2026 dismissing the application to set aside the ex parte judgment. The judgment and the decree flowing therefrom have not themselves been appealed. 36.A stay of execution is intended to preserve the subject matter of an appeal. In the present case, however, the decree sought to be stayed flows from a judgment that is not itself the subject of the intended appeal. The Court must therefore examine with particular care whether the Applicants have demonstrated a proper basis for staying the execution of that decree pending the determination of the intended appeal. 37.The principles governing an application for stay of execution pending appeal are set out in Order 42 Rule 6(2) of the Civil Procedure Rules. The Rule requires an applicant to satisfy the Court that:a.Substantial loss may result unless the order is granted;b.The application has been made without unreasonable delay; andc.Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. Whether substantial loss has been demonstrated 38.The cornerstone of an application under Order 42 Rule 6 is proof of substantial loss. The burden rests upon the Applicants to demonstrate, by evidence, that unless a stay is granted, they stand to suffer loss that cannot adequately be compensated or remedied should the appeal ultimately succeed. 39.The Applicants principally contend that they face execution of the decree and recovery of costs. They also assert that the Respondent may dispose of the suit property before the appeal is determined. 40.Beyond those assertions, no evidential material was placed before the Court. In particular, the Applicants have not demonstrated that the Respondent has taken steps to dispose of the suit property or that any such disposition is imminent. Equally, the mere fact that execution of a lawful decree, including recovery of costs, may proceed does not, without more, constitute substantial loss within the meaning of Order 42 Rule 6. 41.The Applicants further submitted that a stay is necessary to preserve their right of appeal. While the right of appeal is an important one, it does not automatically entitle a party to a stay of execution. The applicant must still satisfy the statutory requirements. 42.I am therefore not persuaded that the Applicants have established substantial loss. Whether the application was brought without unreasonable delay 43.As already observed, the Applicants have explained the delay in bringing the present application and for the reasons earlier given, the Court accepted that explanation for purposes of extending time to appeal. I therefore do not find that the application should fail on account of delay. Security for the due performance of the decree 44.The third requirement under Order 42 Rule 6(2) concerns security for the due performance of the decree. The requirement is intended to balance the successful litigant's right to enjoy the fruits of the judgment with the unsuccessful party's right to pursue an appeal. It assures the decree-holder that, should the appeal fail, the decree will remain capable of enforcement. 45.In the present case, the Applicants neither proposed any form of security nor expressed a willingness to furnish security for the due performance of the decree. Instead, they invited the Court to impose such terms as it might consider appropriate should it be minded to grant a stay. 46.While the Court retains discretion to determine the nature and quantum of security, that discretion is ordinarily exercised where the applicant has addressed the requirement and demonstrated a willingness to comply with such terms as may be imposed. The Applicants' failure to engage with this statutory requirement weighs against the exercise of the Court's discretion in their favour. 47.Accordingly, having failed to demonstrate substantial loss and having failed to address the requirement for security, the Applicants have not satisfied the cumulative conditions prescribed under Order 42 Rule 6(2) of the Civil Procedure Rules. The prayer for stay of execution is therefore declined. Stay of Proceedings 48.The Applicants have also sought an order staying further proceedings before the subordinate court. 49.The guiding principles for granting a stay of proceedings were authoritatively restated by the Court of Appeal in Khan v International Commercial Company (K) Ltd (Pet. E009 & E010 of 2023 (Consolidated)) [2023] KESC 84 (KLR), as follows:a.The grant of an order for stay of proceedings is to be entertained only in deserving cases;b.Such orders are discretionary, exercisable by the court upon consideration of the facts and circumstances of each case; andc.Where necessary, this Court may also exercise its discretion to decline to grant interlocutory relief, if the same may imperil the ultimate function of the Court with the effect of rendering justice in accordance with the Constitution and the ordinary law. 50.The threshold for granting a stay of proceedings is exceptionally high. As stated in Halsbury’s Laws of England (4th Ed., Vol. 37, pp. 330–332), a stay constitutes a grave interruption of a party’s right to have their case determined on the merits and should therefore be granted sparingly and only in exceptional circumstances. It is reserved for cases that are frivolous, vexatious, or manifestly groundless, where it is evident that the proceedings ought not to continue. 51.Indeed, such an order interrupts the ordinary course of litigation and delays the determination of disputes, contrary to the constitutional imperative that justice shall not be delayed under Article 159(2)(b) of the Constitution. 52.In the present case, the proceedings before the subordinate court have since been concluded. There are therefore no pending proceedings capable of being stayed. 53.In those circumstances, I find no basis upon which the Court's discretion to stay proceedings may properly be exercised. The prayer for stay of proceedings is therefore declined. 54.Before I conclude, I consider it appropriate to observe that, while pursuing the present Application, the Applicants had also filed a similar application before the subordinate court relating to the execution of the same decree. Although no determination falls to be made on that issue in this ruling, the Court deprecates the practice of simultaneously pursuing substantially similar relief before different courts. Such a course is liable to occasion duplication of proceedings, create the risk of inconsistent decisions and result in an unnecessary expenditure of judicial time and judicial resources. 55.As regards costs, the Applicants have succeeded only in obtaining leave to appeal out of time, which merely enables the intended appeal to be pursued. Their substantive prayers for stay of execution and stay of proceedings have failed. In those circumstances, and in the absence of any sufficient reason to depart from the general principle under section 27 of the Civil Procedure Act that costs follow the event, I award the costs of the application to the Respondent. Disposition 56.In the result, and for the reasons set out above, I make the following orders:a.The prayer for leave for the firm of Gachoki Muriuki & Associates Advocates to come on record for the Applicants is hereby allowed.b.Leave is hereby granted to the Applicants to lodge an appeal out of time against the ruling delivered on 27th January 2026.c.The Applicants shall file and serve the Memorandum of Appeal within fourteen (14) days from the date hereof and shall thereafter file and serve the Record of Appeal within thirty (30) days.d.In default of compliance with order (c) above, the leave granted in order (b) shall automatically lapse without the necessity of any further order of the Court.e.The prayer for stay of execution of the decree arising from the judgment delivered on 22nd May 2025 pending the intended appeal is declined.f.The prayer for stay of proceedings before the subordinate court is declined.g.he Respondent shall have the costs of the Application.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JULY, 2026.HON. J. N. KUYIONIJUDGE02.07.2026 RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMIn the presence of;Catherine Court Assistant.MR. Gachoki for the Applicants.Ms. Mutuku holding brief for Gichuki for Respondent.