https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3530

Njeru & another v Thararoi Ltd (Environment and Land Miscellaneous Case E402 of 2025) [2026] KEELC 3530 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3530 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Case E402 of 2025 CG Mbogo, J June 11, 2026 Between Mercy Wawira Njeru 1st Applicant Linet Odah t/a Day Care & Kindergaten 2nd Applicant and Thararoi Limited Respondent Ruling 1.Before me is the notice of motion dated 16th December, 2025 filed by the applicants, and it is expressed to be brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Sections 4 & 13 of the Environment and Land Court Act and Articles 22, 159(2) & 162 (2) (b) of the Constitution seeking the following orders:-1.Spent.2.That leave of this honourable court be granted to the applicants/proposed appellants to file and lodge the memorandum of appeal and the record of appeal out of time against the judgment and subsequent decree of the learned Hon. Mrs. M. Otindo (SPM) delivered on 17th September, 2025 in MC ELC No. E579 of 2025 formerly MCCCOM No. 1676 of 2019.3.There be an order of stay of execution of the judgment delivered on 17th September, 2025 in MC ELC E579 of 2025 and the subsequent decree pending the hearing and determination of this application inter-partes.4.There be an order of stay of execution of the judgment delivered on 17th September, 2025 in MC ELC E579 of 2025 and the subsequent decree pending the hearing and determination of the intended appeal.5.That costs of this application be in the cause. 2.The application is premised on the grounds inter alia that the applicants are intent to lodge an appeal against the judgment of the trial court in MCELC No. E579 of 2025 delivered on 17th September, 2025. The application was further supported by the affidavit of the 1st applicant sworn on even date. She deposed that judgment in this matter was delivered on 17th September, 2025 without their knowledge and upon realizing the same, the time to appeal had already lapsed. The 1st applicant deposed that the judgment had been fixed for delivery on 29th August, 2025 but the court did not sit on that day. 3.She further deposed that later on 9th December 2025, they got to know that the said judgment had been delivered and thus the time to lodge the record of appeal had lapsed. She added that it was in the interest of justice that they are granted leave to lodge the memorandum of appeal out of time. The 1st applicant deposed that the appeal is merited and raises triable issues and that they stood to suffer serious prejudice if the said prayers were not granted. 4.The respondent opposed the application vide the replying affidavit of Sylvester Muema Munguti sworn on 16th February, 2026. He deposed that the applicants did not file their application for an extension until 16th December, 2025 which was more than 90 days after the judgment. He added that the same did not meet the threshold of a good and sufficient cause. The respondent further deposed that the applicants approached the court in bad faith by claiming that they were unaware of the judgment yet the Judiciary Case Tracking System (CTS) was clear on this. 5.Further, it was deposed that despite obtaining court directions on 3rd January, 2026 with regard to the instant application, the applicants waited until 9th February, 2026 being 37 days to serve its advocates with the application. The respondent deposed that the intended appeal has no merit nor does it raise any triable issues. The respondent added that an extension of time is an equitable remedy only available to a deserving party. 6.The application was canvassed through written submissions. The applicants filed their submissions dated 13th March, 2026. The respondent filed its submissions dated 10th March, 2026. I have considered the application, replying affidavit and the written submissions. The issue for determination is whether the applicants should be granted leave to file an appeal out of time. 7.Section 79G of the Civil Procedure Act provides as follows:-“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.” 8.It is noteworthy that this court has the discretion to extend time which ought to be exercised within the principles of the law. In the case of Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others [2014] KECA 782 (KLR) the court held as follows:-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 for 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.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5.Whether there will be any prejudice to be suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 9.Further, in the case of Nyamboki V Gathuru (Application 6 of 2019) [2019] KESC 44 (KLR) the court held that:-“..., the court has to consider whether the explanation given for any delay is reasonable and credible; whether there also exist extenuating circumstances to enable the court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.” 10.In the instant case, it is not in dispute that judgment was delivered on 17th September, 2025. Being dissatisfied with the judgment of the trial court, the applicants had 30 days within which to file an appeal. The applicants stated that the basis for the delay in filing the memorandum of appeal was as a result of change in the date of delivery of the judgment. Further, that the court did not sit on the date set for delivery of the judgment and they only realized on 9th December, 2025 that judgment had already been delivered prompting them to file the present application. 11.The respondent on the other hand contended that the application was made in bad faith since the applicants were aware of the judgment date as evidenced in the Judiciary Case Tracking System (CTS). I have perused the court record, and it is not in dispute that the matter was mentioned twice after 29th August, 2025 before the court delivered its judgment. In my view, the allegations made by the applicants are unsubstantiated and ill advised particularly on their failure to conceal material facts. 12.While the court has the power to enlarge time within which to file a memorandum of appeal, in such instances sufficient reasons must be shown through reasonable explanation. The applicants have failed on this. It is my finding that the applicants went into slumber after 29th August, 2025 and the court cannot come to the aid of an indolent party. 13.From the above, I find no merit in the notice of motion dated 16th December, 2025. The same is hereby dismissed with costs to the respondent.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE11/06/2026.In the presence of:Mr. Benson Agunga - Court assistantMs. Munanie for the RespondentNo appearance for the Applicant