https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4657

Mwenje v Kagangi & 6 others (Environment and Land Miscellaneous Application E029 of 2025) [2026] KEELC 4657 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEELC 4657 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Miscellaneous Application E029 of 2025 SM Kibunja, J July 22, 2026 Between Mary Njeri Mwenje Appellant and Josphat Nyaga Kagangi 1st Respondent Martin Gichira Kangangi 2nd Respondent Purity Wakuthii Kangangi 3rd Respondent Sophia Wakini Kangangi 4th Respondent Francis Mbui Mbora 5th Respondent Michael Wachira Githinji 6th Respondent Bibiana Wanjiku Mutugi 7th Respondent Ruling 1.Before this Court is the notice of motion dated 29th October 2025, that is brought under Sections 3, 13, 16A, and 19 of the Environment and Land Court Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, principally seeking for leave to lodge an appeal out of time against the judgment delivered on 26th January 2024 by Hon. D. M. Ireri in Baricho MCELC No. E022 of 2022; an order of stay of execution of the said judgment and decree pending the hearing and determination of the intended appeal, together with such ancillary orders as are necessary to facilitate the filing and prosecution of the appeal.The application is supported by the supporting affidavit sworn by the applicant on 29th October 2025 and a supplementary affidavit sworn on 9th November 2025. 2.In her supporting affidavit, the applicant inter alia deponed that she instituted Baricho MCELC No. E022 of 2022, challenging the Respondents' registration as proprietors of Land Parcel No. Mwerua/kithumbu/98 and the resultant subdivisions thereof. According to her, the trial court dismissed her claim by a judgment delivered on 26th January 2024, prompting her intention to challenge that decision before this Court.The applicant attributes her failure to lodge the intended appeal within the prescribed time to a combination of circumstances beyond her control. She deposes that her advocate, who had conduct of the matter before the subordinate court, passed away shortly before the judgment was delivered.She further avers that she subsequently suffered ill health requiring medical attention and although she later instructed another firm of advocates to pursue an appeal, the appeal was never filed. She therefore urges the Court to exercise its discretion in her favour, and enlarge the time for filing the intended appeal.The Applicant further avers that unless execution of the decree is stayed, the Respondents are likely to enforce the judgment to her detriment, thereby rendering the intended appeal nugatory. 3.In her supplementary affidavit, sworn on 9th November 2025, the applicant deposed that she has occupied Land Parcel No. Mwerua/kithumbu/98 for over fifty years, and contends that the Respondents procured its subdivision while she remained in occupation.It is her case that her long occupation gave rise to an overriding interest in the suit property within the meaning of Section 30(g) of the repealed Registered Land Act, an interest which she maintains continues to enjoy constitutional protection.She further deposed that the intended appeal is not an afterthought, but an effort to vindicate what she considers her proprietary rights over the only home she has known for decades. She reiterates that her advancing age and deteriorating health significantly hampered her ability to pursue the intended appeal within time, and that any delay was neither deliberate nor intended to obstruct the administration of justice. That unless the application is allowed, she and her family stand to suffer irreparable prejudice through eviction from the suit property, on which they have established their home, and derive their livelihood. She maintains that the intended appeal raises arguable issues with high chances of success, and urges the Court to exercise its discretion in favour of substantive justice. 4.Though the 1st to 4th respondents indicated in their submissions dated 5th December 2025 that they opposed the application through grounds of opposition and replying affidavit sworn on the 18th January 2025, only grounds of opposition dated 18th November 2025 has been traced by the court from both the physical record and CTS. As this proceeding was commenced through the application dated 29th October 2025, it is impossible for a replying affidavit to have been sworn on 18th January 2025, months before the commencement of the application. 5.However, the court has seen on the CTS a replying affidavit filed and sworn by Paul Murimi Mugo on 18th November 2025, but from its heading, it that relates to a matter before the Kerugoya Small Claims Court in SCCCOMM No. E378 of 2025, which has different parties from the instant suit. 6.The court has not traced any replies or submissions by the 5th to 7th respondents from the physical record or CTS. The court will take it that none has been filed by, or for them. Applicant’s Submissions 7.Counsel for the Applicant submitted inter alia that the Court should exercise its discretion to enlarge time for filing the intended appeal. It is argued that the delay was sufficiently explained, having been occasioned by circumstances beyond the Applicant's control, namely the demise of her erstwhile advocate shortly before delivery of the impugned judgment; her subsequent ill health, and the failure by advocates thereafter instructed to lodge the appeal.Counsel further submits that the Applicant has demonstrated an arguable intended appeal, raising questions relating to ownership of the suit property, long occupation and customary rights. Counsel contended that, at this stage, the Court is not required to determine the merit of the intended appeal, but only whether it raises bona fide issues deserving consideration on appeal. 8.On the prayer for stay of execution, counsel submits that the Applicant has been in occupation of the suit property for over fifty years, and that execution of the decree would expose her and her family to eviction from what she considers to be their only home. It is therefore argued that unless execution is stayed, the Applicant will suffer substantial loss and the intended appeal, if successful, would be rendered nugatory. Counsel urges the Court to invoke its discretionary jurisdiction in favour of substantive justice, and grant the orders sought. 1St To 4Th Respondents’ Submission: 9.Counsel for the 1st to 4th Respondents opposes the application and submits that the Applicant has failed to establish sufficient cause to warrant the enlargement of time. It is argued that the application was instituted approximately twenty months after delivery of the impugned judgment, and that the explanation offered does not satisfactorily account for the entire period of delay.Counsel further submits that the Applicant's account of the circumstances surrounding delivery of the judgment is inconsistent with the record of the subordinate court, and that the allegations concerning the subsequent advocates' failure to lodge the appeal remain unsupported by any independent evidence. Consequently, counsel urged that the Court should decline to exercise its discretion in favour of the Applicant. 10.Regarding the prayer for stay of execution, counsel submits that the Respondents, having successfully defended the suit before the subordinate court, are entitled to enjoy the fruits of their judgment.It is further argued that in the absence of leave to appeal out of time, there exists no competent appeal capable of sustaining an order for stay of execution. 11.The issues arising in the application for the court’s determination are as follows:a.Whether the applicant has met the threshold for an order of extension or enlargement of time to file an appeal to issue.b.Whether the applicant has established a reasonable case for an order of stay of execution pending determination of the intended appeal to issue.c.Who pays the costs? 12.I have carefully considered the grounds on the notice of motion, grounds of opposition, the affidavit evidence, the rival submissions by the learned counsel, the applicable law and come to the following conclusions:a.The application principally invites the Court to exercise its discretion to enlarge time within which the Applicant may lodge an appeal against the judgment delivered on 26th January 2024, in Baricho MCELC No. E022 of 2022. The prayer for stay of execution is consequential to that principal prayer because, absent leave to appeal out of time, there would be no competent appeal upon which an order of stay may be anchored.The jurisdiction of this Court to enlarge time is donated by the proviso to Section 79G of the Civil Procedure Act, Chapter 21 of Laws of Kenya, which permits the Court to admit an appeal out of time, where the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal within the prescribed period.b.The exercise of the discretion to extend time to file an appeal beyond that prescribed by statute is now well settled. In the case of Leo Sila Mutiso versus Rose Hellen Wangari Mwangi, Civil Application No. NAI. 255 of 1997, the Court of Appeal held that the Court should in such applications consider, among other factors, the length of the delay, the reason for the delay, the possible arguability of the intended appeal, and the degree of prejudice likely to be occasioned to the respondent.The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR further underscored that extension of time is not a right, but an equitable remedy available only to a deserving litigant, who has laid a proper basis for the exercise of the Court's discretion.c.There is no dispute that the judgment sought to be appealed against herein was delivered on 26th January 2024, while the present application was lodged on 29th October 2025. The delay is therefore approximately twenty-one months. Such a delay is undoubtedly inordinate, and therefore calls for a satisfactory and credible explanation, accounting for the entire period between the expiry of the statutory period for filing an appeal and the institution of the present application.d.The Applicant attributes the delay to three principal circumstances. Firstly, that her advocate passed away shortly before delivery of the judgment; secondly, that she suffered ill health; and thirdly, that the advocates she subsequently instructed failed to institute the intended appeal.Counsel for the Applicant submitted that those matters were beyond the Applicant's control, and should not be visited upon her. The Respondents, on the other hand, contend that the explanations given neither account for the entire period of delay nor demonstrate sufficient cause to warrant the exercise of the Court's discretion.e.The Court accepts that the demise of counsel shortly before delivery of judgment was an unfortunate event which may reasonably have disrupted the Applicant's ability to obtain prompt legal advice regarding the next course of action. The Court also accepts the medical documents exhibited by the Applicant. The discharge summaries from Kirinyaga Treatment Centre confirm that she was admitted to hospital between 7th February and 15th February 2024, and again between 30th April and 7th May 2024. Those medical records lend credence to her assertion that she experienced health challenges during the period immediately following delivery of the judgment.f.However, the Court must consider whether those circumstances explain the entire period of delay. While the death of counsel and the Applicant's hospitalisation may reasonably account for some delay during the early months of 2024, they do not explain the lack of action for the whole of the prolonged period that followed.Upon her discharge on 7th May 2024, no evidence has been placed before the Court demonstrating what steps, if any, were taken soon thereafter, to pursue the intended appeal, before the present application was eventually lodged on 29th October 2025. That unexplained period totals to some seventeen months.g.The Applicant further depones that she instructed another firm of advocates, which failed to lodge the intended appeal. While courts are generally slow to visit genuine mistakes of counsel upon an innocent litigant, such an allegation must nevertheless be supported by evidence.In the present case, the Applicant has not identified the advocates allegedly instructed to lodge the an appeal, nor has she exhibited any correspondence, instructions, receipts, or affidavit from those advocates explaining why the appeal was not filed. Consequently, the allegation remains a bare assertion incapable of satisfactorily accounting for that lengthy delay.h.Counsel for the Applicant urged the Court to consider that the intended appeal raises weighty issues relating to the long occupation of the suit property, and the existence of an overriding interest. The Court has given due consideration to those submissions.It is not in dispute that disputes concerning land, particularly those involving alleged long occupation, and the prospect of eviction are matters of considerable importance. Nevertheless, the arguability of an intended appeal cannot of itself, displace the statutory requirement that an applicant must demonstrate good and sufficient cause for failing to file the appeal within the statutory time. The discretion under Section 79G is exercised upon a consideration of all the relevant circumstances, and no single factor is decisive.i.The Court has equally considered the question of likely prejudice. The Applicant fears eviction from land, which she states has been her home for over fifty years. That concern is not lost on the Court. Conversely, the Respondents obtained judgment in their favour in January 2024. and are equally entitled to the benefit of that judgment. The principle of finality in litigation requires that successful litigants should not be kept from the fruits of their judgment indefinitely unless sufficient cause has been demonstrated.Having weighed all the circumstances of this case, I am not persuaded that the Applicant has established good and sufficient cause within the meaning of Section 79G of the Civil Procedure Act.j.The death of her advocate and the medical evidence presented only explain part of the delay, but do not satisfactorily account for the entire period of approximately twenty-one months before the present application was filed. The subsequent period remains largely unexplained, and the allegation that another firm of advocates failed to act is unsupported by any objective evidence. In those circumstances, the Court is unable to exercise its discretion in favour of the Applicant. Having reached that conclusion, the prayer for stay of execution cannot stand independently. Since leave to file the intended appeal out of time is declined, there is no competent appeal upon which an order for stay of execution can be anchored. The prayer for stay therefore fails.k.Under Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya, costs follow the event unless where for good reasons the court directs differently. In this application, I find no reasonable cause to deviate from that edict. 13.Flowing from the above conclusions on the application, the court finds and orders as follows:a.That the application dated 29th October 2025 is without merit and is dismissed.b.The applicant/intended appellant is to meet 1st and 4th the respondents’ costs. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 22ND DAY OF JULY 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Applicant/Intended Appellant – Mr. Awino for OkunRespondents – M/s Waweru for 1st and 4th RespondentKinyua/Charles - Court Assistant