https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3707

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCMISC NO. E074 OF 2025** **ISAIAH WAWERU NGUMI………………………..…………..……APPELLANT** **VERSUS** **DAVID NJUNG’E MUNGAI………………………………….1ST RESPONDENT** **THE PHYSICAL PLANNING** **OFFICER KIKUYU SUB COUNTY ……………………..…..2ND RESPONDENT** **THE COUNTY GOVERNMENT OF KIAMBU…………….3RD RESPONDENT** **THE WARD ADMINISTRATOR SIGONA WARD** **KIKUYU SUB COUNTY……………………………………..4TH RESPONDENT** **RULING** 1. The Applicant has moved the Court by way of a **Notice of Motion** brought under **Sections 1A, 1B, 3 & 3A of the Civil Procedure Act** and **Order 40 and Order 51 Rule 1 of the Civil Procedure Rules**. The Application primarily seeks the Court’s intervention to allow an appeal out of time and to halt ongoing proceedings in the lower Court to preserve the substratum of the intended appeal. 2. The Applicant seeks the following specific orders from the Honorable Court: 3. Spent. 4. That the Court issues an Order of Stay of proceedings in **MCELC NO. 13 of 2022** at Kikuyu, pending the hearing and determination of this Application. 5. That the Applicant be granted leave to file an Appeal out of time against the Ruling delivered by **Hon. Lynne Liz Gicheha Chief Magistrate)** on 22/08/2024. 6. That the costs associated with the Application abide by the outcome of the main suit. 7. The Application is anchored on the Supporting Affidavit of **Isaiah Waweru Ngumi** and is predicated upon the following grounds: 8. The Applicant contends that the ongoing proceedings in the Kikuyu Magistrate’s Court threaten his right to a fair trial. Without an intervention, he stands to suffer irreparable harm and a significant miscarriage of justice. 9. It is argued that the dictates of natural justice and the overriding objectives of the Court necessitate the granting of the orders to ensure the Applicant is heard. 10. The Applicant avers that the Respondents will not suffer any prejudice if the prayers—specifically the leave to appeal out of time are granted. 11. The Applicant affirms that the Honorable Court is properly seized of the jurisdiction to hear and determine the prayers as sought. 12. The Application is opposed by the 1st Respondent who filed Grounds of Opposition dated 26/01/2026. 13. The Respondent contends that the Application is premised on inapplicable provisions of the law. It is argued that under Order 42 Rule 1 of the Civil Procedure Rules, an appeal must be instituted by way of a Memorandum of Appeal, whereas a Notice of Appeal is merely a formal expression of intent and does not constitute an appeal in itself. 14. The Respondent invokes Section 79G of the Civil Procedure Act, which mandates that appeals from subordinate Courts be filed within thirty (30) days. The Respondent asserts that the Applicant has failed to demonstrate good or sufficient cause for the delay in filing the appeal, thus failing to meet the established judicial threshold for the grant of discretionary orders. 15. The 1st Respondent argues that the Notice of Appeal filed on 3rd September 2024 is fatally defective, incompetent**,** and a nullity *ab initio*. Consequently, the Application as drawn is deemed incurably defective and incapable of being sustained in law. 16. The Respondent characterizes the Application as frivolous, vexatious, and mischievous. That the application is an afterthought and a blatant abuse and misuse of the judicial process; contemptuous of the established rules of procedure. 17. Ultimately, the 1st Respondent maintains that the prayers sought are unmeritorious and do not warrant the exercise of the Court’s discretion. The Respondent prays that the Application be dismissed with costs. 18. The Application was canvassed by way of written submissions. 19. The dispute before the Court centers on the Applicant’s quest to salvage a right of appeal that has been caught by the headwinds of statutory timelines. At its core, this is a clash between the principle of finality in litigation and the right to a fair hearing. 20. The key and only issue is whether the Applicant has established a basis for the Court to exercise its discretion to extend time to file an appeal out of time under Section 79G of the Civil Procedure Act. This section is couched in mandatory terms, requiring appeals from the Subordinate Court to be filed within 30 days, unless the Court finds good and sufficient cause for the delay. 21. The Supreme Court, settled the governing principles in **Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, Supreme Court Application No. 16 of 2014 [2014] eKLR,** where the Court, speaking through a bench of five judges, held as follows: ***"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; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; whether there is a reasonable reason for the delay the delay should be explained to the satisfaction of the Court; whether there will be any prejudice suffered by the Respondents if the extension is granted; and whether the application has been brought without undue delay."*** 1. These principles, having emanated from the apex Court, bind all Courts below. As the Ruling faithfully acknowledges, the ruling sought to be appealed was delivered on 22/08/2024, and the Notice of Appeal was filed on 3/09/2024 a mere twelve days later and well within the thirty-day window. The Application before the ELC, however, was not filed until January 2026, meaning that the effective delay in constituting a proper appeal is approximately seventeen months. The central grievance of the Respondent is that this lapse has not been explained at all, let alone to the satisfaction of the Court, and in that regard the Respondent's position draws considerable support from the framework articulated in **Thuita Mwangi v. Kenya Airways Limited [2003] eKLR**, where the Court of Appeal, per Justices Omolo, Keiwua and O'Kubasu, crystallized the considerations for enlargement of time as including the period of delay, the reason for the delay, the arguability of the appeal, the degree of prejudice which could be suffered by the Respondent if the extension is granted, the importance of compliance with time limits to the particular litigant or issue, and the effect if any on the administration of justice or public interest. 2. On the basis of this record, the Applicant has not breathed a single word of explanation for the near-year-and-a-half gap between filing the Notice of Appeal and approaching the ELC for leave to appeal. 3. The secondary but equally consequential issue is whether the Applicant was required to file a Memorandum of Appeal as the Respondent contends or whether the Notice of Appeal filed on 3/09/2024 is sufficient to constitute and anchor an appeal from the Kikuyu Magistrate's Court to the ELC. Order 42 Rule 1 of the Civil Procedure Rules provides that an appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading. The ELC, being a Court established under the Environment and Land Court Act, 2011 with original and appellate jurisdiction equivalent to the High Court, takes appeals from subordinate Courts including the Magistrate's Court by way of a Memorandum of Appeal and a Record of Appeal as prescribed under Order 42. The Notice of Appeal, in this context, is nothing more than a formal declaration of intent to appeal, a preparatory step at best, but not the appeal itself. In **Environment and Land Appeal No. E002 of 2024**, the ELC itself confronted a near-identical situation and was unequivocal: ***"This Court finds that the instant application is premised on the wrong provisions of law, as the Applicants are seeking for leave to file an Appeal out of time. This Court is not governed by the Court of Appeal Rules, but by the Civil Procedure Act and Rules. Therefore, the Applicants ought to have invoked the Provisions of Section 79G of the Civil Procedure Act and order on the leave to file an Appeal out of time."*** 1. It follows from this that the proper instrument to initiate an appeal from the Magistrate's Court to the ELC is the Memorandum of Appeal, not a Notice of Appeal, and the Application as drawn anchored on a Notice of Appeal rather than a Memorandum is procedurally compromised at its foundation. Furthermore, the Applicant's enabling provision, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act alongside Order 40 and Order 51 Rule 1, are provisions that relate to the overriding objective and injunctive relief respectively, rather than to leave to file appeals out of time; the correct provision being Section 79G of the Civil Procedure Act, and the omission to cite it strikes at the legal competence of the Notice of Motion itself. 2. Turning to whether the delay is truly inordinate in the circumstances of this case, it must be appreciated that the Courts have consistently resisted mechanically equating delay with automatic defeat, particularly where the right of access to justice hangs in the balance. The Supreme Court in **Nicholas Kiptoo Arap Korir Salat** itself recognized that extension of time is a discretionary and very powerful tool which should be exercised with abundant caution, care and fairness, and should be used judiciously and not whimsically, to ensure that the principles enshrined in our Constitution are realized. 3. The Constitution of Kenya, 2010, under Article 50(1), guarantees every person the right to have any dispute resolved in a fair and public hearing before a Court or independent tribunal. Courts have on numerous occasions found that a delay in the range of two months to six months, when adequately explained, does not qualify as inordinate. In **Maina v Wangui (Miscellaneous Application No. 29 of 2017) [2017] eKLR (High Court of Kenya, Nairobi)**, the Court found that a delay of about six weeks beyond the stipulated period cannot be said to be inordinate and granted the extension. At the same time, the Court emphasized that extension is an equitable remedy, not a right, and must be exercised judiciously 4. In in the instant application, the Notice of Appeal was filed within time, which demonstrates the Applicant's appreciation of the urgency. The difficulty, however, is not the twelve days it took to file the Notice of Appeal that is unimpeachable but rather the unaccounted for seventeen months between September 2024 and January 2026 during which nothing substantive was done to perfect the appeal. 5. The Applicant's Supporting Affidavit, as extracted in the Ruling, is conspicuously silent on this period, and speaks only in general terms about irreparable harm and miscarriage of justice, which are not substitutes for factual explanation. The Court of Appeal, speaking through the bench in **Paul Musili Wambua v. Attorney General & 2 Others [2015] eKLR**, reminded Courts that ***"In the exercise of such discretion, the Court must act upon reason(s) not based on whim or caprice. In general, the matters which a Court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted."*** 1. On all four of those limbs, the Applicant's case is thin with not much to hold on to given the current record. 2. Following the above analysis, my finding on the application is that the Application as drawn and presented is premised on the wrong provisions of law Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 and Order 51 Rule 1 and not on Section 79G of the Civil Procedure Act, which is the operative provision governing leave to appeal out of time from a subordinate Court to the ELC; the Application is, in that respect, fatally defective and incapable of sustaining the prayer for leave to file an appeal out of time. 3. Further, an appeal from the Magistrate's Court to the ELC must be constituted by way of a Memorandum of Appeal as prescribed under Order 42 Rule 1 of the Civil Procedure Rules; a Notice of Appeal is merely an expression of intent and does not constitute an appeal; the Applicant's reliance on the Notice of Appeal filed on 3/09/2024 as the foundation of his intended appeal is legally insufficient. 4. Moreso the delay of approximately seventeen months between the filing of the Notice of Appeal and the institution of this Application has not been explained at all, and the Applicant has therefore failed to satisfy the threshold of good and sufficient cause as required by Section 79G of the Civil Procedure Act and as clarified by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat(supra**) the delay, in the absence of any explanation whatsoever, cannot but be described as inordinate. 5. Also, the prayer for stay of proceedings in **MCELC No. 13 of 2022** at Kikuyu is ancillary to the main prayer for leave to appeal, and since the main prayer fails, the stay of proceedings equally fails; there is no subsisting or properly constituted appeal upon which a stay can be hung. 6. The Application is accordingly dismissed with costs to the 1st Respondent. 7. Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 17TH DAY OF JUNE 2026.** **……………………….** **MOGENI J** **JUDGE** **In the presence of:** Mr. Isaiah Waweru the Appellant/Applicant - present in person Mr. Gakaria for 1st Respondent 2nd Respondent – Absent Ms. Kibathi for the 3rd and 4th Respondent Ms. Lillian - Court Assistant **……………………..** **MOGENI J** **JUDGE**