Mwangi v Catholic Archdiocese of Nyeri (Miscellaneous Application E051 of 2025) [2026] KEELC 4182 (KLR) (1 July 2026) (Ruling)

Mwangi v Catholic Archdiocese of Nyeri (Miscellaneous Application E051 of 2025) [2026] KEELC 4182 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4182 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Miscellaneous Application E051 of 2025 EK Makori, J July 1, 2026 Between Peter Kamau Mwangi Intended Appellant and Catholic Archdiocese Of Nyeri Respondent Ruling 1.The Applicant herein filed an application pursuant to the Notice of Motion dated December 10, 2025, seeking the following orders:a.That this Honorable Court be pleased to grant leave to the Applicant to file an Appeal out of time against the Ruling delivered on 8th July 2025 by Hon. C. K. Obara (SPM) in MCL&E No. 29 of 2018.b.That upon grant of prayer 1 above, the Applicant be at liberty to file the Memorandum and Record of Appeal annexed to the supporting affidavit herein within such time as this court shall direct.c.The cost of this application should be provided. 2.The Application is supported by the affidavit of Faith Njoki, the Applicant’s Advocate of record. She deposed that on July 8, 2025, the Learned Trial Magistrate delivered a Ruling in MCL&E No. 29 of 2018, in which the court allowed the Respondent’s application dated July 4, 2024, and struck out the Applicant’s Bill of Costs dated June 5, 2024, in its entirety. 3.Upon being aggrieved by the said Ruling, she was instructed by their client to file an appeal but mistakenly appealed to the High Court (Civil Division) under HCCA, E037 of 2025, which was subsequently struck out for want of jurisdiction on 19th November 2025, as it is a matter for the ELC Court. 4.It is Counsel’s prayer that the failure to file the appeal in the correct court was a bona fide mistake caused by an oversight, and that this mistake should not be visited upon the Applicant herein. 5.Counsel for the Applicant also argues that the intended appeal is highly meritorious and raises triable issues of law with a high probability of success, as follows. The gravamen of the appeal is that the Learned Magistrate erred in law by misinterpreting the nature of the Court’s costs order, which directed that the costs of the main suit be shared equally between the Plaintiff and the Third Party. The order did not quantify any figure, nor did it create a single fund from which all party costs must be paid. 6.That it fails to recognize that the Third Party’s certificate of costs for Kshs. 205,375/- is a distinct and separate entitlement from the Third Party’s own tabulation of their costs related to their successful joinder and claim. That it does not represent, and cannot be conflated with, the unquantified “global costs” for the primary suit. 7.Consequently, they argue that striking out the Applicant’s bill of costs was a fundamental error because the Applicant’s bill of costs, which includes costs for the successful appeal and other attendances, is a separate and independent claim that is not extinguished or replaced by the Third Party’s certificate of costs. The lower court’s decision unlawfully deprived the Applicant of his right to have his own costs taxed and allowed, thereby denying him the fruits of his successful litigation and the costs attendant thereto. 8.Counsel annexed a draft of the intended Memorandum of Appeal and the Record of Appeal. 9.They contend that the Respondent will suffer no prejudice if this application is granted and that it is in the interest of justice and in line with the duty of this Honorable Court, as enshrined in Article 159(2)(d) of the Constitution, to administer justice without undue regard for procedural technicalities, that the Applicant be granted an extension of time to pursue his legitimate claim. The Respondent’s replying affidavit 10.Father David Mutahi swore a responding affidavit pursuant to section 79G of the Civil Procedure Act. The Applicant was entitled to file an appeal to the Environment and Land Court within 30 days from the date of the order emanating from the ruling intended to be challenged, and the default in filing the appeal within the stipulated timeline was occasioned by the Applicant’s advocate, who mistakenly filed the appeal before the wrong c 11.As his advocates have stated on record, the extension of time is not a right but an equitable remedy granted at the Court’s discretion. He believes that an advocate’s mistake, without more, does not automatically constitute good and sufficient cause to warrant the exercise of this Honorable Court’s discretion. 12.That the failure by the applicant’s advocates to file an appeal in the proper court was not a mere procedural technicality but a grave jurisdictional error, particularly because the cause of action in the trial court arose from a land-environment matter. 13.Further, the Respondent argues that the intended appeal, as outlined in the draft Memorandum of Appeal annexed to the application, does not raise any triable issues and has no prospect of success, as it merely seeks to reopen issues conclusively determined by the trial court. No appeal or reference was filed challenging the costs awarded. 14.They contend that the trial court’s ruling dated 8th July, 2025, dismissed the Appellant’s Party and Party Bill of Costs dated 5th June, 2024, for lack of jurisdiction, because the trial court had already awarded the parties a global cost of Kshs. 205,375/= to be shared equally between the parties; subsequently, a decree was extracted, and the costs payable thereunder were paid. 15.Further, that in any event, if the court grants leave to the Applicant, the grant would be an exercise in futility, since no appeal was filed challenging the costs. 16.The Respondent contends that they would suffer prejudice if the Applicant’s application were allowed, as it would increase their litigation costs and further waste the precious judicial time of this Honorable Court. That litigation must come to an end, and this Honorable Court should not exercise its discretion in favor of a party who has failed to demonstrate good and sufficient cause. The Applicant’s written submissions 17.Counsel for the Applicant submitted that Section 79G of the Civil Procedure Act provides 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 in time. They relied on the Supreme Court's guiding principles for extensions of time, as settled in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR. 18.The Applicant submits that it is trite law that a Counsel's mistake should not be visited upon an innocent litigant unless it amounts to gross negligence or sheer indolence. They note that the appeal in the High Court was filed on time and argue that the mistake was purely jurisdictional. After the High Court struck out the appeal, the Applicant moved promptly to file the application herein. 19.Secondly, it is submitted that the draft Memorandum of Appeal demonstrates triable issues of law regarding party-and-party costs and shows that the appeal is arguable and not frivolous. 20.Third, in response to the Respondent’s contention that they would suffer prejudice if the application were granted, in the form of increased litigation costs, the Applicant responded that costs can always compensate the Respondent. Conversely, they argue that the Applicant would suffer substantial prejudice if denied the right to challenge a ruling that struck out his entire Bill of Costs, thereby depriving him of the fruits of his judgment. 21.Regarding security for costs, it is submitted that the Respondent does not hold a money decree against the Applicant. Security for costs under Order 42 Rule 6 of the Civil Procedure Rules secures a decretal sum owed by an Appellant to a Respondent, ensuring the fruits of judgment are not lost pending appeal. Thus, Counsel argues that ordering security in these circumstances would penalize a litigant for pursuing a legitimate grievance, contrary to the constitutional imperative of access to justice under Article 48. 22.The Applicant concluded that they have demonstrated that the delay was caused by a bona fide legal misstep, not indolence, and that the appeal is arguable, and prays that the application be granted as requested. The Respondent’s written submissions 23.Counsel for the Respondent submitted that the Applicant and/or intended Appellant who seeks his appeal to be admitted out of time must satisfy the court that he had a good and sufficient cause for not filing the appeal in time. 24.They relied on the case of Feroz Begum Qureshi and Another vs. Maganbhai Patel and Others [1964] EA 633, in which the court held that there is no difference between the terms “sufficient cause” and “good cause”. They also relied on the following authorities: Wachira Karani v Bildad Wachira [2016] KEHC 6334 (KLR) and Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) 25.Their submission is that the Applicant’s Advocate's mistake does not constitute good and sufficient cause for failing to file the appeal in time, especially because the mistake arose from sheer negligence and a lack of due diligence by the Advocate in identifying the proper forum for filing the intended appeal. 26.Their submission is that an extension of time is a discretion that should be exercised with abundant caution, care, and fairness; it ought to be used judiciously, not whimsically, to ensure that the principles enshrined in the Constitution are realized. On this point, they relied on the authority of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). 27.The Respondent argues that the Applicant’s Advocates ought to have known that the proper forum for an appeal in land and environmental matters is this Honorable Court, whose jurisdiction is conferred by Article 162(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act. That this mistake by the Applicant’s Advocate in failing to file an appeal in the proper court was not a mere procedural technicality but a grave jurisdictional error, and ignorance of the law is no defense. 28.On the merits of the intended appeal, the Respondent submits that the draft Memorandum of Appeal annexed to the application does not raise any triable issues and has no prospect of success, stating that it merely seeks to reopen issues that the trial court conclusively determined, and that no appeal or reference was filed to challenge that determination. 29.It is the Respondent’s case that the trial court, in its judgment dated 23rd November, 2021, initially found that the Applicant (then the Plaintiff) and the then Interested Party had successfully prosecuted their claims and awarded them global costs of Kshs. 205,375/=, to be shared equally between them. The costs payable by the Defendant herein, the Respondent, were paid to the Plaintiff and the Interested Party. 30.The Applicant then filed a Party and Party Bill of Costs dated 5th June, 2024, which the Respondent opposed and subsequently sought to have struck out as an abuse of the court’s process, given that costs had been assessed, determined, and paid to the parties by the Catholic Archdiocese of Nyeri. The trial court agreed and struck out the Applicant’s bill of costs. For this reason, the Respondent prays that the instant application be dismissed. Analysis and determination 31.The Applicant herein seeks an extension of time to file an appeal against the decision in MCL&E No. 29 of 2018, delivered on 8th July 2025, which struck out their Bill of Costs. They argue that they were awarded the suit's costs payable by the Respondent. Their reason for not filing the appeal in time was that they had instead filed it with the High Court (Civil Division) under HCCA. E037 of 2025, which was subsequently struck out for want of jurisdiction on 19th November 2025, as it is a matter for the ELC Court. 32.Section 79 G of the Civil Procedure Act provides that:“Every appeal from a subordinate 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.” 33.Section 95 of the Civil Procedure Act provides that:“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 the period originally fixed or granted may have expired.” 34.Both parties relied on the Supreme Court's finding in Nicholas Kiptoo Arap Korir Salat v IEBC and 7 Others, Sup Ct. Application 16 of 2014, which established the principles to be applied when exercising the discretionary power to extend time:“Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis [for] where they seek grant of it.……. This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the exercise of 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 [good] reason for the delay, the delay should be explained to the satisfaction of the Court; 5.whether there will be any prejudice suffered by the respondents if the extension is granted; 6.whether the application has been brought without undue delay; and 7.whether in certain cases, like election petitions, the public interest should be a consideration for extending time.” 35.Thus, the Court’s power to extend the time for a party to file an appeal is purely discretionary, and the Court must consider all the factors surrounding the circumstances of the case. The Court of Appeal in Leo Sila Mutiso v Hellen Wangari Mwangi (1992) 2 EA 231 held 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 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.” 36.In the present case, the Counsel for the Applicant’s reason for the delay is that the appeal was filed in a court that lacked jurisdiction to hear it, and it was later struck out. In my view, ignorance of the law is no defense, especially for a Counsel who is knowledgeable in the law. However, it has been previously held that the mistake of counsel should not be visited upon a litigant. In the case of CFC Stanbic Limited versus John Maina Githaiga & another [2013] eKLR, the Court of Appeal held as follows-“On the issue of the mistake of counsel, it is not in dispute that the appellant gave instructions to its advocates in good time once it was served with the pleadings and summons to enter appearance. Therefore, the failure to enter appearance and file a defence is clearly attributable to its advocate who failed to enter appearance and file defence in good time. This being the mistake of counsel, the same ought not to be visited upon the appellant. This Court is guided by the case of LEE G MUTHOGA V HABIB ZURICH FINANCE (K) LTD & ANOTHER, CIVIL APPLICATION NO. NAI 236 OF 2009, where this Court held: "It's a widely accepted principle of law that a litigant should not suffer because of his advocate's oversight." In the instant appeal, we are of the view that the appellant should not suffer because of the mistakes of its counsel.” 37.Further, in considering the merit of the appeal, from the reading of the impugned ruling dated 8th July 2025, the trial court found that:‘I have read the court’s judgment dated 23rd November, 2021. Indeed, the court awarded global costs to be shared between the plaintiff and the interested party. No appeal was filed against the said decision neither was a reference filed challenging the costs awarded.’ 38.The Applicant has also attached the judgment delivered on November 23, 2021, in their draft record of appeal, the conclusion and determination of which read as follows:‘The interested party and the plaintiff have successfully prosecuted their claims. The court shall award them a global cost to be shared equally by each of them given that clause of action originated from the same breach. CONCLUSIONa)The plaintiff is awarded prayer 1 of the claim in the alternative prayer 2b)The interested party is awarded a sum of Ksh 540,000c)Costs and interest of the suit as stated above from the date of judgment till payment in full. 39.Costs were awarded to the interested party in the amount of Ksh. 540,000, but it is unclear from the judgment whether the Applicant was also to receive Ksh. 540,000/= or whether this sum was to be shared between the two parties. It is, however, clear that the parties were not to file individual bills of costs because the costs were to be shared. 40.Consequently, the Court grants the Applicant an extension of time to appeal because the Applicant has already forfeited their right to review by filing an appeal. 41.No order as to costs. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 1ST DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Ms. Kamau for the ApplicantMr. Kibe for the RespondentDenis - Court Assistant