https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4772

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT LAND COURT OF KENYА** **AT KWALE** **MISC CIVIL APP NO. E019 OF 2025** 1. **ABEID MAJIBU MWACHILEO** 2. **JUMA HAMISI MWAKОВА** 3. **SALIM MWABUNDU** 4. **ZUBERI ABDALLA** 5. **RASHID SAID MDOGO** 6. **OMARI ALI MLAULA ………… APPELLANTS/APPLICANTS** **-VERSUS** 1. **SALIM SAID JABU** 2. **HАМISI HASSAN MWAKUCHEREM** 3. **RAMA SAID MWAKUBO ……………………… RESPONDENTS** **RULING** 1. **Introduction** 2. Before this Honourable Court for determination is the Notice of Motion application dated 15th November, 2025 brought by *Abeid Majibu Mwachileo, Juma Hamisi Mwakoba, Salim Mwabundu, Zuberi Abdalla, Rashid Said Mdogo and Omari Ali Mlaula* the six (6) Appellants/Applicants herein, against *Salim Said Jabu, Hamisi Hassan Mwakucherem and Rama Said Mwakubo* the three (3) Respondents herein. 3. The application was brought pursuant to the provisions of Order 42 Rules 6 and 7 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Cap. 21 Laws of Kenya, and all other enabling provisions of the law. 4. Upon service, the Respondents opposed the application through a Replying Affidavit sworn by the 1st Respondent, Salim Said Jabu, on 6th February, 2026, together with written submissions dated 9th March, 2026. Their position was that the application was devoid of merit, that the delay had not been satisfactorily explained, that the Applicants deliberately failed to attend Court during several scheduled Judgment dates, and that the intended appeal lacks any arguable grounds capable of warranting the exercise of this Court's discretion. 5. **The case by the 1st, 2nd, 3rd, 4th, 5th & 6th Appellants/Applicants** 6. The 1st, 2nd, 3rd, 4th, 5th & 6th Appellants/Applicants Notice of sought principally the following substantive orders: 7. ***Spent.*** 8. ***That pending the hearing and determination of this Application inter-partes, the Honourable Court be pleased to issue an Order of injunction against the Respondents either by themselves, their assigns, servants, agents and/or any other persons acting under their direction from either entering, selling, offering for sale, transferring, leasing and/or in any other way interfering with the property known as KWALE/NG’OMBENI/236 pending Appeal of the Judgment delivered on 5th September, 2025 in the Chief Magistrate’s Court Land Case No. E018 of 2020 (Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others) and all other consequential orders arising therefrom;*** 9. ***That pending the hearing and determination of the intended Appeal herein, the Honourable Court be pleased to issue an Order of injunction against the Respondents either by themselves, their assigns, servants, agents and/or any other persons acting under their direction from either entering, selling, offering for sale, transferring, leasing and/or in any other way interfering with the property known as KWALE/NG’OMBENI/236 pending Appeal of the Judgment delivered on 5th September, 2025 in the Chief Magistrate’s Court Land Case No. E018 of 2020 (Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others) and all other consequential orders arising therefrom on terms and conditions that are just in the circumstances;*** 10. ***That this Honourable Court be pleased to grant the Applicants leave to appeal out of time and to treat the draft Memorandum of Appeal annexed herewith as duly filed; and*** 11. ***That the costs of this Application be provided for.*** 12. The application is premised on the grounds, testimonial facts and averments made out under the twenty three (23) Paragraphed Supporting Affidavit of ABEID MAJIBU MWACHILEO, the 1st Appellant/Applicant herein, sworn and dated on 28th November, 2025 together with two annexures marked as annexure “A” being copies of the Draft Memorandum of Appeal and the impugned Judgment of the trial Court delivered on 5th September, 2025. He averred as follows:- 13. For the sake of context, the genesis of this application is traceable to the Judgment of Hon. L.T. Lewa, the Senior Principal Magistrate, delivered on 5th September, 2025 in the Chief Magistrate’s Court at Kwale in Land Case No. E018 of 2020 – *Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others*. 14. By the said Judgment, the trial Court dismissed with costs the Appellants/Applicants’ suit which sought, inter alia, a declaration that all that parcel of land known as Title Number KWALE/NG’OMBENI/236 (hereinafter referred to as “the suit property”) had always been the property of the late Mwinyi Mwachongwa and that his daughter, the late Mwanamwinyi Kuyumbwa Mwinyi, held the same in trust for all the beneficiaries of his lineage; a permanent injunction restraining the Respondents from alienating the suit property; 15. An order that the Registrar be rectified to include the 1st and 2nd Appellants/Applicants as co-trustees. 16. The trial Court, upon evaluating the evidence tendered before it, held that the suit property was demarcated, surveyed and recorded in the sole name of Mwanamwinyi Kuyumbwa Mwinyi on 11th July, 1975 without any qualification that she held it as a trustee. 17. It held that the Appellants/Applicants failed to discharge the burden of proof cast upon them under Sections 107 and 109 of the Evidence Act, Cap. 80. 18. That the title held by the Respondents, having devolved upon them through Succession Cause No. 133 of 2019 before the Kadhi’s Court, was indefeasible and only impeachable on the grounds set out under Sections 26 (1) and 80 (1) of the Land Registration Act, No. 3 of 2012; and that the Kadhi’s Court order remained uncontested. The suit was accordingly dismissed with costs. 19. Being aggrieved and dissatisfied with the said Judgment, they intend to appeal against the whole of it, which appeal, in their estimation, has high chances of success. 20. Due to the delay in obtaining the Judgment of the lower Court, their intention of appealing within the requisite statutory timeframe of thirty (30) days was impeded through no fault of their own, hence their prayer for leave to appeal out of time and for the annexed draft Memorandum of Appeal to be deemed as duly filed. 21. Being apprehensive that, in view of the delayed notification of the Judgment, the Respondents may proceed to sell the suit property to their disadvantage, and that indeed in the intervening period the Respondents have been entertaining likely purchasers to come and view the suit land. 22. Unless the orders sought was granted, they stood to suffer irreparable loss and great prejudice, and the intended appeal will be rendered nugatory. 23. Finally, the Appellants/Applicants averred that the application was brought timeously and without unreasonable delay, having been filed only about a week after they received the subject Judgment from the CTS Portal, and that they have annexed a copy of the Draft Memorandum of Appeal together with the impugned Judgment in demonstration of their bona fides. 24. **Replying Affidavit by the 1st, 2nd & 3rd Respondents** 25. Upon being served, the Respondents opposed the application through the seventeen (17) Paragraphed Replying Affidavit of SALIM SAID JABU, the 1st Respondent herein, sworn and dated on 6th February, 2026 together with the annexures marked as “SSJ - 1”, “SSJ - 2”, “SSJ - 3” and “KBM - 1” annexed thereto. He averred as follows that:- 26. In stiff opposition to the application, the 1st Respondent deponed that the Appellants/Applicants instituted the suit at the Magistrate’s Court in the year 2020 and the Respondents successfully defended and prosecuted it for the last five (5) years. 27. The Respondents had been deprived of the use of the suit property by the Appellants/Applicants who had continued to trespass upon and cultivate the same; and that by allowing the intended appeal, the Respondents would be deprived of the fruits of the Judgment delivered on 5th September, 2025. 28. On the advice of his Advocates on record, that an application of this nature must be made without unreasonable delay; that the Appellants/Applicants had not demonstrated good and sufficient cause for not filing the appeal in time. 29. They had instead come to equity with unclean hands and shifted blame onto the Court while they themselves are guilty of not attending Court when the matter came up for Judgment. 30. It was not the first time the Appellants/Applicants neglected their duty to attend Court, noting that they were the Plaintiffs before the trial Court. To wit, on 30th May, 2025 when the matter was scheduled, and similarly on 30th July, 2025, 27th August, 2025 and 5th September, 2025, the Appellants/Applicants were not in Court when the matter was scheduled for the delivery of the Judgment. 31. Contrary to the Appellants/Applicants’ averments, the Judgment was delivered virtually on 5th September, 2025 and that he was present in his Advocates’ chambers when the same was delivered in the absence of the Plaintiffs. He annexed and marked as “SSJ - 1” a copy of his Advocates on record’s Court Attendance Notes and a screenshot of his Advocates on record’s WhatsApp group update of 5th September, 2025. 32. The Appellants/Applicants were indolent in failing to attend Court on 5th September, 2025 and that their averment that both parties were absent and that the Judgment was “delivered” on 12th November, 2025 was misleading and an attempt to cover up their indolence. 33. The Judgment was only posted on 12th November, 2025 on the CTS Portal after his Advocate on record inquired on the Kwale Bar Bench WhatsApp Group about the Judgment being posted on CTS, and annexed a screenshot of the said inquiry marked as “SSJ - 2”. 34. On the arguability of the intended appeal, the 1st Respondent responded seriatim to each of the ten (10) grounds set out in the Draft Memorandum of Appeal, contending in the main that the learned trial Magistrate correctly applied her mind to the facts, the law and the circumstances of the case. 35. Both the Land Registrar and the Adjudication Officer confirmed to the trial Court that the late Mwanamwinyi Kuyumbwa Mwinyi was never recorded as holding the suit property in trust of anyone or as a trustee; that no dispute was recorded or filed against the recorded owner at the time of demarcation and registration; and that the Appellants/Applicants were aware of the succession proceedings at the Kadhi’s Court but neither challenged the same nor appealed the orders stemming therefrom. He annexed a copy of the Judgment dated 5th September, 2025 marked as “KBM - 1”. 36. The intended appeal was a mere academic exercise with no chance of success; that the Appellants/Applicants had not demonstrated what substantial loss they stand to suffer; and that the Court must balance the interests of the Applicants against those of a successful litigant who ought not to be deprived of the fruits of his Judgment. 37. He further deponed that should the Court allow the application, the Respondents will suffer prejudice; that the Appellants/Applicants are in occupation of the suit property and have been felling trees even after the Court pronounced itself, placing the property at risk of going to waste; and that he has reported the matter to the Ng’ombeni Police Station, annexing a copy of the Occurrence Book (OB) extract marked “SSJ - 3”. 38. Finally, the 1st Respondent deponed, on the advice of his Advocates, that the Appellants/Applicants are required to meet the threshold demonstrated in the celebrated case of “***Giella – Versus – Cassman Brown & Company Limited (1973) EA 358”***, which they have failed to do, having demonstrated neither the existence of a prima facie case nor injury incapable of adequate compensation in damages. He termed the application flimsy, frivolous, scandalous and an abuse of the Court process, and prayed that it be dismissed with costs. 39. **Submissions** 40. On 30th April, 2026 while all the parties were present before the Court, they were directed to canvass the application by way of written submissions. 41. Subsequently, all parties complied. Pursuant to that the Honourabe Court reserved 16th July, 2026 as the day to deliver the Ruling accordingly. 42. **The Written Submissions by the Appellants/Applicants** 43. The Law Firm of Messrs. Akanga Alera & Associates Advocates filed written submissions dated 9th March, 2026 on behalf of the Appellants/Applicants. Mr. Akanga Advocate rehashed the grounds on the face of the application and submitted that from the Replying Affidavit filed in opposition to the motion, it is clear that the Respondents’ Counsel was present during the delivery of the Judgment but thereafter chose to keep silent and let the thirty (30) days limited for preferring a Memorandum of Appeal lapse; and that though under no obligation, that active choice to remain silent moved the Appellants/Applicants to the position in which they now find themselves. 44. Counsel submitted that the grievance raised in the proposed appeal is that the Appellants/Applicants’ great grandmother, Mwanamwinyi, inherited the suit land from her father Mwinyi Mwachongwa; that at the time of land adjudication she was the oldest surviving child of Mwinyi Mwachongwa; that all the descendants of Mwinyi Mwachongwa among the five siblings of Mwanamwinyi have always lived on the suit land to date; that her four (4) siblings were buried on the land and the great grandchildren live there to date; and that Mwanamwinyi was therefore registered in trust of herself and all her siblings and their descendants, who have nowhere else to go or live. 45. It was submitted that it is trite law that an order for injunction pending appeal is guided by the same principles as those guiding a stay pending appeal, and that the Court must be satisfied of three factors, namely: substantial loss; that the application must have been made within reasonable time; and security for the due performance of the decree or orders. On substantial loss, Counsel submitted that the same would be the permanent loss of the Appellants/Applicants’ home as they have known it since they were born. On timeliness, the Learned Counsel submitted that the Appellants/Applicants brought the application as soon as they became aware of the existence of the Judgment, delay being construed from the circumstances of each case on its own merit. The Learned Counsel further submitted that the grounds laid out in the Memorandum of Appeal disclose an arguable appeal. 46. To buttress those propositions, the Learned Counsel placed reliance on the authorities of:- ***Kenya Power & Lighting Company Limited – Versus – Kigaita Ngare Unduthu & 36 Others [2020] eKLR*** and ***Kenya Shell Limited – Versus – Benjamin Karuga Kibiru & Another [1986] eKLR***, and urged the Court to grant the orders sought. 47. **The Written Submissions by the Respondents** 48. The Law Firm of Messrs. Chimera, Kamotho & Company Advocates LLP filed written submissions dated 2nd April, 2026 on behalf of the Respondents. M/s. Kimani Advocate isolated two (2) issues for determination, namely: whether the application was merited; and who should bears the costs. 49. On the first issue. The Learned Counsel submitted that an application of this nature was guided specifically by Order 42 Rule 6 (6) of the Civil Procedure Rules, 2010 and the principles in the case of:- “***Giella – Versus – Cassman Brown (Supra)”***. The Learned Counsel submitted that the said sub-rule donates to this Court discretionary power to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from the sub - ordinate Court has been complied with; and that by dint of the provision of Section 79G of the Civil Procedure Act, Cap. 21, every appeal from a subordinate Court to the High Court must be filed within thirty (30) days from the date of the decree or order appealed against. 50. The Learned Counsel contended that the Appellants/Applicants had not complied with the mandatory procedure for filing of an appeal. She averred that the Judgment of the sub - ordinate Court was delivered on 5th September, 2025 and the thirty (30) days lapsed on 5th October, 2025; that the Appellants/Applicants’ repeated neglect and casual approach caused the delay; and that their indolence in failing to attend Court was not an excusable mistake but rather a tactic meant to deliberately delay the cause of justice. To buttress on these assertion, reliance was placed on the case of “***Njuca Consolidated Company Ltd – Versus – Commercial International Bank & 2 Others [2025] KEHC 2990 (KLR)”*** where the Court, citing “***Bains Construction Co. Ltd – Versus – John Mzare Ogowe (2011) eKLR”***, observed that mere inaction by an advocate was not an excusable mistake which the Court may consider with sympathy. 51. The Learned Counsel further submitted that this Court was not seized of the matter and lacked the requisite power to determine whether or not to grant the injunction sought in the exercise of its appellate jurisdiction, because there was no Memorandum of Appeal properly on record and therefore no appeal upon which the application for injunction would be based. In support thereof, the Learned Counsel cited the cases of:- “***Julius Musili Kyunga – Versus – Kenya Commercial Bank Limited & Another [2012] KEHC 342 (KLR)”***, “***Raphael Mulinge Muthusi & 2 Others – Versus – Mary Ndila Nyolo [2022] KEELC 1886 (KLR)”*** and “***Yinda (Suing as administrator of the Late Linus Yinda Opondo) – Versus – Okumu & 3 Others [2024] KEELC 663 (KLR)”***. 52. On the applicable principles, the Learned Counsel relied on the case of “***Otieno & 9 Others – Versus – Wagude & Another [2023] KEELC 16339 (KLR)”***, which adopted the principles settled in “***Patricia Njeri & 3 Others – Versus – National Museums of Kenya [2014] eKLR”***, to the effect that: an order of injunction pending appeal is a discretionary matter which would be exercised against an applicant whose appeal is frivolous; the discretion should be refused where it would inflict greater hardship than it would avoid; the applicant must show that to refuse the injunction would render the appeal nugatory; and the Court should also be guided by the principles in “***Giella – Versus – Cassman Brown (Supra)***. The Counsel also cited “***Loyd Mugambi Maina & 19 Others – Versus – Kirumi Kiamujari Water Project [2022] KEELC 1216 (KLR)”*** and “***Maleto – Versus – Thini [2025] KEELC 5065 (KLR)”*** on the judicious, as opposed to arbitrary or capricious, exercise of discretion. 53. The Learned Counsel opined that the purpose of an injunction pending appeal is to preserve the subject matter; that the Respondents had not extracted any decree to enforce and no evidence has been tendered to substantiate that the Respondents were offering the suit property for sale; that if anything, it was the Appellants/Applicants who had been felling trees even after the sub - ordinate Court held in favour of the Respondents; and that it was the Respondents who risked the property going to waste, having reported the matter to the Ng’ombeni Police Station as evidenced by annexure as “SSJ - 3”. Reliance was placed on “***Chucha – Versus – Wamaitha & 2 Others [2023] KECA 290 (KLR)”*** on the meaning of the term “nugatory”. 54. On principles enshrined in “***the Giella case”***, the Learned Counsel submitted that the Appellants/Applicants had not established “***a prima facie case’***, the trial Court having rightfully held that it was incumbent upon them to adduce evidence demonstrating that the suit property was registered in the name of Mwanamwinyi Kuyumbwa Mwinyi in trust of Mwinyi Mwachongwa’s lineage, which they failed to prove; that the suit property could be quantified and the Appellants/Applicants could be awarded damages should they succeed on appeal; and that the balance of convenience tilted in favour of the Respondents. Reliance was placed on the Court of Appeal decision in the case of “***Charter House Investment Limited – Versus – Simon K. Sang & 3 Others [2010] KECA 56 (KLR)”***. 55. On costs. The Counsel invoked the provision of Section 27 of the Civil Procedure Act, Cap. 21 and the cases of:- “***Republic – Versus – Rosemary Wairimu Munene, Ex - Parte Applicant Ihururu Dairy Farmers Co - operative Society Limited, Judicial Review No. 6 of 2014*** and ***Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Another (2016) eKLR”*** on the settled proposition that costs follow the event, and prayed that costs be awarded to the Respondents. 56. **Analysis and Determination** 57. I have keenly considered the Notice of Motion application dated 15th November, 2025, the Supporting Affidavit and the annexures thereto, the Replying Affidavit and the annexures thereto, the rival written submissions by the Learned Counsel for the parties, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the applicable statutes. 58. In order to arrive at an informed, reasonable, just and fair decision, this Honorable Court has framed the following three (3) salient issues for its determination: 59. ***Whether the Appellants/Applicants have made out a case for the grant of leave to appeal out of time against the Judgment delivered on 5th September, 2025 in Kwale CMELC Case No. E018 of 2020, and for the annexed draft Memorandum of Appeal to be deemed as duly filed;*** 60. ***Whether the Appellants/Applicants are entitled to a temporary injunction against the Respondents over the suit property, being Title Number KWALE/NG’OMBENI/236, pending the hearing and determination of the intended appeal; and*** 61. ***Who should bear the costs of the application.*** ***ISSUE No. a)*** ***Whether the Appellants/Applicants have made out a case for the grant of leave to appeal out of time against the Judgment delivered on 5th September, 2025 in Kwale CMELC Case No. E018 of 2020, and for the annexed draft Memorandum of Appeal to be deemed as duly filed;*** 1. Before proceeding on with the analysis under this sub – heading, the Honourable Court wishes to extrapolate of some brief background of the matter. The application arose from the Judgment delivered by the Lower trial Court -n civil case numbers “***the Chief Magistrate's Court at Kwale in CM ELC Case No. E018 of 2020, Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others”***, on 5th September, 2025, whereby the Appellants/Applicants’ suit was dismissed. Dissatisfied with the said decision, the Appellants/ Applicants expressed their intention to challenge the entire Judgment before this Court. 2. The Appellanats/Applicants contend that although the Judgment was delivered on 5th September, 2025, the Court communicated the existence of the Judgment through the Court Tracking System (CTS) on 12th November, 2025, thereby occasioning delay in lodging their appeal within the statutory thirty (30) days stipulated under Section 79G of the Civil Procedure Act2, Cap. 21. Consequently, they sought for leave to file the intended appeal out of time together with interim preservatory orders over Land Parcel Number Kwale/Ng'ombeni/236 pending the hearing and determination of the intended appeal. 3. From the pleadings filed herein, it was evident that the dispute concerns ownership and occupation of Land Parcel Number Kwale/Ng'ombeni/236, with the Appellants/Applicants asserting beneficial interests founded upon alleged customary trust and inheritance, while the Respondents maintain that they were the absolute registered and legal proprietors whose title was lawfully upheld by the trial Court after a full hearing spanning approximately five years. 4. Having carefully considered the pleadings, affidavits, annextures, written submissions and authorities filed by the respective parties, this Court now proceeds to determine whether sufficient grounds had been established to warrant the grant of leave to appeal out of time and the grant of an injunction pending the intended appeal. That is adequate on facts. 5. Now turning to this Sub heading. The Honourable Court wishes to deliberate on the relief sought by the 1st, 2nd, 3rd, 4th, 5th and 6th Appellant/Applicants for this Court to be pleased to allow them to appeal against the Judgment of Hon. L.T. Lewa, the Senior Principal Magistrate, delivered on 5th September, 2025 in “***the Chief Magistrate’s Court at Kwale in Land Case No. E018 of 2020 – Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others.*** The issue of extension of time to file appeal from the lower court to this Court are governed under the provision of Section 79G of the Civil Procedure Act, Cap. 21. It provides that: - **A “ Every appeal from a Sub - Ordinate 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 .** **B: 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”** 1. Similarly, the provision of Section 16A(1) and (2)of the Environment and Land Court Act, No. 19 of 2011 provides that:- **A)“Every appeal from a sub - ordinate 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 a copy of the decree or order.** **B)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”.** 1. However, the principles that guide the court in the exercise of its discretion to extend time for filing an appeal out of time are governed under the provisions of Section 79G and 95 of the Civil Procedure Act, Cap. 21 and Order 50 Rules 6 and 7 of the Civil Procedure Rules, 2010 **Section 79G provides:- Time for filing appeals from Sub – ordinate courts – Every appeal from the sub – odinate 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.** **Section 95 provides - Enlargement of Time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Act, the Court may, in its discretion, from time to time, enlarge such period, even though originally fixed or granted may have expired.** **Order 50 ( 6 ):- Power to enlarge Time:- Where a limited time has been fixed for the doing of any act prescribed or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.** **Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.** 1. Furthermore, these principles exhaustively and comprehensively were laid down by the Supreme Court in the case of “***Nicholas Kiptoo Arap Salat – Versus - IEBC & 7 Others (2014) eKLR****,* as follows:- ***“……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*; and** 7. ***whether in certain cases, like election petitions, public interest should be a consideration for extending time”* [emphasis supplied]** 1. Similarly, the Court of Appeal in the case of “***Thuita Mwangi – Versus Kenya Airways Limited (2003) eKLR”*** quoted with approval the case of “***Leo Sila Mutiso – Versus - Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997*) (unreported)** where the court set out guidelines on applications for extension of time to file appeals: - ***“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the Respondent if the application is granted”.*** 1. Therefore, it is now settled that a court of law has unfettered discretion to extend time to appeal which discretion has to be exercised judiciously as restated in the case of:- “***Omar Shurie – Versus - Marian Rashe Yafar (2020) eklr*** as follows:- **“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court considers in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.** 1. The Court of Appeal in the case of***: “Waweru – Versus – Munene (2026) eklr”*** re - emphasised that grant of leave to appeal out of time is discretionary which discretion ought to be exercised judiciously and on sound principles being the the period of delay,reason for the delay , degree of prejudice to the opposing party and argueability of the appeal. 2. Applying the above principles to the instant application, the chronology of events is largely common ground. On quick computation, the Judgment of the trial Court was delivered on 5th September, 2025. By dint of the provision of Section 79G of the Civil Procedure Act, Cap. 21 the thirty (30) days within which to lodge the appeal lapsed on or about 5th October, 2025. The instant application was filed on or about 28th November, 2025, having been dated 15th November, 2025 – a period of approximately two and a half (2½) months from the date of the delivery of the Judgment. By any standards, this was out of the stipulated time frame but was the delay inordinate and/or unreasonable? 3. The reason advanced by the Appellants/Applicants for the delay is that although the Judgment was delivered on 5th September, 2025, it was only conveyed and/or uploaded onto the Judiciary Case Tracking System (CTS) Portal on 12th November, 2025 at 16:41:57 hours – a delay of over sixty seven (67) days – and that they moved this Court within a matter of days upon accessing the contents thereof. 4. On its part, the Respondents vehemently contested this narrative, terming it a cover-up for the Appellants/Applicants’ own indolence, and demonstrating through annexures marked as “SSJ - 1” and “SSJ - 2” that the Judgment was indeed delivered virtually on 5th September, 2025, with the Respondents’ Counsel in attendance, and it was only posted onto the CTS Portal on 12th November, 2025 following an inquiry by the Respondents’ own Advocate on the Kwale Bar Bench WhatsApp Group. 5. All said and done, this Honorable Court has carefully interrogated the rival positions. Significantly, three (3) matters stand out from the record. Firstly, the impugned Judgment itself, at its attestation and delivery clause, records in no uncertain terms that it was ***“dated, signed and delivered virtually on 5th September, 2025”*** in the presence of “Plaintiffs – No Appearance; Defendants – No Appearance”. The official record of the trial Court therefore reflects that neither party formally entered appearance at its delivery. Secondly, and most tellingly, the Respondents’ own annexure “SSJ-2” – the screenshot of the Kwale Bar Bench WhatsApp Group exchange of 12th November, 2025 – corroborates, rather than controverts, the Appellants/Applicants’ central complaint: that the Judgment was only uploaded onto the CTS Portal on 12th November, 2025, and even then, only upon the prompting of the Learned Counsel. Thirdly, upon accessing the Judgment on 12th November, 2025, the Appellants/Applicants moved with commendable alacrity, dating their application a mere three (3) days later, on 15th November, 2025. 6. The centrality of a party’s access to the reasoned Judgment cannot be gainsaid. A Memorandum of Appeal must, of necessity, be predicated upon the reasons contained in the impugned decision. A party cannot meaningfully formulate grounds of appeal against a Judgment whose contents it has not seen. In the era of electronic Court operations, where Judgments are delivered virtually and transmitted through the CTS Portal and electronic mail, the delayed transmission of a Judgment for a period of sixty seven (67) days is, in the considered view of this Court, a factor squarely outside the control of the litigants, and constitutes ***“good and sufficient cause”*** within the contemplation of the proviso to the provision of Section 79G of the Civil Procedure Act, Cap. 21. 7. That said, this Court does not condone, and must express its censure of, the casual manner in which the Appellants/Applicants and their Counsel attended to the matter before the trial Court. The record shows a pattern of non-attendance on no less than four (4) occasions when the matter was listed for the delivery of the Judgment, including on 5th September, 2025 itself. Had the Appellants/Applicants been diligent in following up on their own matter – as the Respondents’ Counsel evidently was – they would, in all likelihood, have learnt of the delivery of the Judgment much earlier. Diligence, candour and vigilance are the price of equity: “***vigilantibus non dormientibus jura subveniunt***” – the law aids the vigilant, not the indolent. Nevertheless, weighing that indolence against the systemic delay in the transmission of the Judgment, the constitutional imperative under the provision of Article 159 (2) (d) of the Constitution of Kenya, 2010 that justice shall be administered without undue regard to procedural technicalities, and the Overriding Objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011 this Court is inclined to resolve the contest in favour of the hearing of the intended appeal on its merits, with the Appellants/Applicants’ conduct being visited upon them by way of costs. 8. On the chances of the intended appeal succeeding, this Court is alive to the caution sounded in the case of “***Loyd Mugambi Maina & 19 Others – Versus – Kirumi Kiamujari Water Project (Supra)”*** that in ascertaining whether an appeal is arguable, the Court does not have to go deeply into the appeal itself, and must avoid making comments that may prejudice the hearing of the appeal. Without expressing any concluded view whatsoever, this Court observes that the draft Memorandum of Appeal raises, “*inter alia”*, questions touching on the existence or otherwise of a customary trust in intergenerational family land registered during the adjudication process in the name of a single surviving family elder, the legal effect of long and continued occupation of the suit property by the wider lineage, and the interplay between succession orders of the Kadhi’s Court and the jurisdiction of the Environment and Land Court. An arguable appeal is not one which must succeed, but one which is not frivolous and which raises at least a single bona fide point deserving of consideration by the appellate Court. The intended appeal herein crosses that modest threshold. 9. On the degree of prejudice, the Respondents’ apprehension of being kept out of the fruits of their judgment is legitimate and weighty. However, that prejudice is capable of amelioration through stringent conditions on the expeditious prosecution of the appeal and an appropriate order on costs, as this Court shall shortly direct. 10. In the ultimate analysis, the Appellants/Applicants have made out a case for the grant of leave to appeal out of time. ***ISSUE No. b).*** ***Whether the Appellants/Applicants are entitled to a temporary injunction against the Respondents over the suit property, being Title Number KWALE/NG’OMBENI/236, pending the hearing and determination of the intended appeal;*** 1. The jurisdictional anchor for the injunctive relief sought is Order 42 Rule 6 (6) of the Civil Procedure Rules, 2010 which provides as follows: **“Notwithstanding anything contained in sub-rule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from the subordinate court or tribunal has been complied with.”** 1. The Respondents mounted a formidable jurisdictional objection to this limb of the application, contending that as at the date of the filing and canvassing of the application, there was no Memorandum of Appeal properly on record, and hence no appeal upon which the injunction could be predicated, placing reliance on the cases of “***Julius Musili Kyunga – Versus – Kenya Commercial Bank Limited & Another (Supra)*** and ***Yinda – Versus – Okumu & 3 Others (Supra)***. 2. With profound respect to the Learned Counsel for the Respondents, that objection, though attractive at first blush, suffers one fatal infirmity: it puts the cart before the horse. The very application before this Court is an omnibus one, seeking in the first instance leave to appeal out of time and an order deeming the annexed draft Memorandum of Appeal as duly filed, and in the second instance an injunction pending that very appeal. Having found merit in the first limb, and leave having been granted, the procedural pre - condition under the provision of Order 42 Rule 6 (6) stands satisfied the moment the draft Memorandum of Appeal is deemed as duly filed. It would be an exercise in futile circuity, and an affront to the overriding objective, to compel a party to file two (2) successive applications – one for leave and another for injunction – where both prayers are properly consolidated in a single motion, as was done here. The authorities cited by the Respondents are distinguishable, in that in those cases no prayer for leave to appeal out of time and/or deeming orders accompanied the prayer for injunction. 3. Turning to the substantive principles, the conditions for the grant of a temporary injunction pending appeal were settled in the case of ***Patricia Njeri & 3 Others – Versus – National Museums of Kenya (Supra)*** as adopted in ***Otieno & 9 Others – Versus – Wagude & Another (Supra)***, namely: 4. ***An order of injunction pending appeal is a discretionary matter which will be exercised against an applicant whose appeal is frivolous. (Also see case of Venture Capital & Credit Limited – Versus - Consolidated Bank of Kenya Ltd Civil Application No Nairobi 349 of 2003 (174 of 2003 UR)*** 5. ***The discretion should be refused where it would inflict great hardship than it would avoid*** 6. ***The applicant must show that to refuse the injunction would render the appeal nugatory*** 7. ***The court should also be guided by the principles in Giella vs Cassman Brown & Co. Ltd.*** 8. The principles for grant of temporary injunctions as were settled in the case of “***Giella – Versus - Cassman Brown (Supra)”*** are that an applicant must firstly show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages and thirdly if the court is in doubt, it will decide an application on the balance of convenience. 9. On the first condition, this Court has already held, without delving into the merits, that the intended appeal is arguable and not frivolous. That finding disposes of the first limb in favour of the Appellants/Applicants. 10. On whether the refusal of the injunction would render the appeal nugatory, the guidance of the Court of Appeal in the case of ***“Chucha – Versus – Wamaitha & 2 Others (Supra)”*** is instructive: whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be restrained, if allowed to happen, is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved. The subject matter herein is land – and not just any land, but ancestral family land measuring approximately 1.8 hectares upon which, according to the record of the trial Court, the 5th and 6th Appellants/Applicants together with their families reside, a fact conceded by the Respondents’ own witness (DW - 1) during cross-examination before the trial Court. The Appellants/Applicants assert occupation to the fourth (4th) generation and the burial of their ancestors thereon. It is trite that land is unique, and its loss – particularly ancestral land bearing family graves and homes – is not readily atoned for in damages. Should the suit property be alienated to a third party purchaser in the intervening period, the intended appeal, even if wholly successful, would be reduced to a pyrrhic and academic victory, with the attendant complications of tracing and impleading innocent third parties. 11. The Respondents countered that no decree has been extracted, that no evidence of any intended sale has been tendered, and that the apprehension is speculative. This Court has weighed that riposte. It is indeed correct that the evidentiary foundation of the apprehended sale is thin, resting on the bare averment that the Respondents have been entertaining prospective purchasers to view the land. However, the converse consideration is equally compelling: if, as the Respondents depone, they harbour no intention whatsoever of alienating the suit property pending the appeal, then an order restraining alienation occasions them no hardship at all, while its refusal exposes the Appellants/Applicants to the risk – however contingent – of irreversible loss of the very substratum of the appeal. In the classic balancing exercise, the scales of hardship tilt in favour of preservation. As was held in the case of:- “***Charter House Investment Ltd – Versus – Simon K. Sang & 3 Others (Supra)”***, an injunction is granted when the subject matter of the case before the Court requires protection and the maintenance of the status quo, in the exercise of sound judicial discretion balancing the conveniences of the parties. 12. At the same time, this Court cannot turn a blind eye to the Respondents’ uncontroverted complaint, supported by the Occurrence Book extract marked “SSJ-3”, that the Appellants/Applicants have themselves been felling trees on the suit property even after the trial Court pronounced itself, thereby placing the property at risk of waste. He who seeks equity must do equity, and he who comes to equity must come with clean hands. The preservation of the substratum of the appeal must, of necessity, be even-handed and cut both ways. Accordingly, while restraining the Respondents from alienating the suit property, this Court shall equally restrain the Appellants/Applicants – and indeed all the parties – from committing any acts of waste, including the felling of trees, the erection of new structures, or any other act calculated to change the character of the suit property pending the appeal. 13. For the avoidance of doubt, the injunctive order shall be confined to acts of alienation and waste. This Court declines the invitation to restrain the Respondents from “entering” the suit property altogether. The Respondents are the registered proprietors, holding a Judgment of a competent Court in their favour; the status quo of occupation and user obtaining as at the date of this Ruling shall simply be maintained, without enlargement by either side. 14. Finally, the equitable indulgence hereby extended is conditional. An injunction pending appeal is not a licence for the leisurely prosecution of that appeal. The Appellants/Applicants, having slumbered once before, shall be held to strict timelines for the filing and prosecution of the appeal, in default whereof the injunctive orders shall lapse automatically without further reference to this Court. 15. The upshot is that the second issue is likewise answered in the affirmative, on the terms and conditions set out in the final orders hereinbelow. ***ISSUE No. c)*** ***Who should bear the costs of the application.*** 1. It is now well established that the issue of Costs is at the discretion of Courts. Costs mean the award that a party is granted at the conclusion of a legal action and proceedings in any litigation. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 provides: - **"Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers"** 1. By the event it means the result or outcome of the legal action. In the case of “***Republic – Versus - Rosemary Wairimu Munene, Ex - Parte Applicant – Versus - Kururu Dairy Farmers Co-operative Society Limited”*** the Court held:- ***"The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case"*** 1. Although the Appellants/Applicants have substantially succeeded in this application, the necessity of the application arose, in no small measure, from their own indolence and want of vigilance before the trial Court, as this Court has found hereinabove. They approached this Court seeking an equitable indulgence. Under those circumstances, it would be unjust to lump the Respondents – who were dragged into opposing an application occasioned partly by the Appellants/Applicants’ own laxity – in costs. The fair and just order to make, and which I hereby make, is that the Appellants/Applicants shall bear the costs of this application in any event. 2. **Conclusion & Disposition** 3. In the long run, and flowing from the extensive analysis of the framed issues hereinabove, based on the principle of Preponderance of Probabilities and the balance of convenience, this Court proceeds to make the following specific final orders:- 4. **THAT the Notice of Motion application dated 15th November, 2025 by the Appellants/Applicants be and is hereby found to be meritorious and hence allowed.** 5. **THAT leave be and is hereby granted to the Appellants/Applicants to file and prosecute their appeal against the Judgment of Hon. L.T. Lewa, Senior Principal Magistrate, delivered on 5th September, 2025 in Kwale Chief Magistrate’s Court ELC Case No. E018 of 2020, out of time.** 6. **THAT the draft Memorandum of Appeal annexed to the application be and is hereby deemed as duly filed, subject to the payment of the requisite Court fees thereon WITHIN FOURTEEN (14) DAYS from the date of this Ruling.** 7. **THAT the Appellants/Applicants shall file and serve the Record of Appeal WITHIN SIXTY (60) DAYS from the date of this Ruling, and shall thereafter prosecute the appeal expeditiously and without undue delay. Physical copy** 8. **THAT pending the hearing and determination of the appeal, a temporary injunction be and is hereby issued restraining the Respondents, whether by themselves, their assigns, servants, agents and/or any other persons acting under their direction or instructions, from selling, offering for sale, transferring, leasing, charging, sub-dividing or in any other manner alienating or disposing of all that parcel of land known as Title Number KWALE/NG’OMBENI/236.** 9. **THAT the status quo of occupation and user of the suit property obtaining as at the date of this Ruling shall be maintained by all the parties, and for the avoidance of doubt, all the parties, whether by themselves, their servants and/or agents, be and are hereby restrained from committing any acts of waste upon the suit property, including but not limited to the felling of trees, the erection of new structures, cultivation of new areas, or any other acts calculated to change the character of the suit property, pending the hearing and determination of the appeal.** 10. **THAT in default of compliance with orders (b) and (c) hereinabove, the injunctive and preservatory orders granted in (d) and (e) hereinabove shall lapse automatically without any further reference to this Honorable Court.** 11. **THAT the matter be and is hereby fixed for mention on 12th October, 2026 before ELC No. 1 Kwale for purposes of confirming compliance and taking further directions on the expeditious disposal of the appeal pursuant to the provision of Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 & 16 of the Civil Procedure Rules, 2010.** 12. **THAT the costs of the application be and are hereby awarded to the Respondents in any event.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…. 16TH…… DAY OF ……….JULY……………2026.** **…………………………………..** **HON. JUSTICE MR. L. L. NAIKUNI,** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of.** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Akanga Advocate for the 1st, 2nd, 3rd, 4th, 5th & 6th Appellants/Applicants. 3. M/s. Kimani Advocate for the 1st, 2nd & 3rd Respondents.