https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4115

Obala & another v Oluoch (Environment and Land Appeal E011 of 2026) [2026] KEELC 4115 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELC 4115 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Appeal E011 of 2026 AE Dena, J July 7, 2026 Between Jackton Ombiro Obala 1st Applicant Richard Juma Obala 2nd Applicant and Arthur Ooko Oluoch Respondent (Being An Application For Leave To File Appeal Out Of Time From The__ Judgment Made By The Magistrate Court At Ukwala (The____ Honourable Mr. Edward Tsimonjero) Dated 15th December, 2025, In____ Ukwala In Mcelc No, E036 Of 2023) Ruling 1.What is before this Court are two applications. the Notice of Motion application dated 12th February, 2026 and 22nd February 2026. The former seeks the following orders; -1.Spent2.That the Applicant/Appellant be granted leave to file the intended appeal herein out of time.3.That in the alternative to prayer (2) herein above, the Draft Memorandum of Appeal dated 10th February, 2026 and annexed herein be deemed to be properly on record and be admitted for hearing.4.That the judgment entered on the 15th of December 2025 together with all consequential orders against the defendants and the estate of Zacharia Obala Ombiro be hereby stayed pending the hearing and determination of this application.The court will deal with the application dated 22nd February 2026 later in this ruling. 2.The Applicant vide her supporting affidavit sworn on 12th February 2026 avers that on the 12th day of December, 2025 the Trial court made a judgment whose effect is to adversely affect the estate of his Grandfather Zacharia Obala Ombiro who was never a party to the case. That the property was registered in the name of his grandfather he was the right party to be sued and that we his grandchildren do not have any locus standi. A copy of the judgment and decree are attached. 3.That since grandfather was alive until his death sometime in July 2025 which was five months before the judgment was delivered, he was the proper party to be sued in the above case and that the said orders cannot be executed and enforced against a person who was not a party to the suit in the trial court. 4.The deponent states that upon the death of his grandfather they could not engage counsel due to financial difficulties but was later introduced to the present counsel who explained to him the requirements of order 9 of the Civil Procedure Rules as regards consent for a new counsel taking over a matter post judgement. That this took time in view of the fees demanded by the previous counsel and recess period but which they were able to resolve albeit after 27 days of the judgement. Copies of the various correspondences and consent between the Advocates were attached. 5.In respect of the prayers for stay of execution it is stated that the respondent had served the applicants with orders requiring the estate of his grandfather to vacate the said property within 60 days which orders were to expire on the 15th of February 2026. A copy of the order was attached. 6.It is deponed that unless the court intervenes with the orders sought herein, their rights to secure protection of the law and constitutional entitlement to fair administrative action will continue to be violated through the actions herein; and through the threatened actions. That rights to property and interests appurtenant thereto including investments/livelihoods built over 70 years are also likely to be violated without the estate of his grandfather being heard. 7.That the Appeal raises weighty issues of law of great public interest which they should be allowed to canvass in the Appeal, without the Appeal being rendered nugatory, or a mere academic exercise. That this application has been brought with reasonable promptitude, and without unnecessary delay. Replying Affidavit 8.QThe application is opposed through the replying affidavit of Arthur Ooko Oluoch sworn on 23/2/2026. It is deponed that the application is an attempt by the Appellants to resuscitate a claim and or course of action that collapsed long ago while they were either still toddlers or yet to be born. That the applicants are his first cousins. The deponents recount the history of the dispute spanning over three decades from the time of adjudication where each family was allocated ½ share in common of the suit property originally South Ugenya/Simenya/289, objection thereto by the applicant’s grandfather claiming the entire land, his refusal to cede the applicants family share who were in occupation and which he lost but failed to appeal. His instigation to the applicant’s family to enter the said portion which they did the deponents family pursuit for peace by leaving them thereon. Destruction of beacons following the applicant’s grandfather’s loss at the succession court and the origins of the suit the subject of this appeal. That he was forced to file Ukwala Land Case No. E036 of 2023 against Jackton Ombiro Obala and Richard Juma Obala in their individual capacities as the persons who had illegally removed the beacons that had been lawfully placed by the land registrar to demarcate the suit land South Ugenya/Simenya/789 and also as the persons who had forcefully entered the suit land and were working on it thereby effectively making it difficult for the respondent to take peaceful occupation and or possession of their land. 9.It is deponed that the Applicants herein did enter appearance and equally filed their defences upon which the matter proceeded to full hearing and judgement rendered where the applicants were ordered to give vacant possession in 60 days and the notice served was appropriate. That the applicants have obtained the exparte orders of stay based on material non-disclosure. 10.It is averred that the intended appeal by the Applicants amounts to nothing but the continued elongation of this dispute by the Applicants who just like their father before them have refused to accept that the courts have consistently upheld the respondents right to the suit land. Further that the respondent’s family have been negatively affected by the exparte orders and generally by the conduct of the Applicants and their family members because while they have been busy erecting structures on the respondents’ fathers land the respondents have been denied the opportunity to progress their lives due to the uncertainty which had existed before regarding the entitlement to the suit land. 11.It is deponed that the Draft Memorandum of Appeal does not demonstrate any arguable appeal and from the face of it, it has zero chances of succeeding for the reasons articulated against each ground raised. 12.It is asserted that the land registrar was simply coming to the suit land to restore the beacons for our land parcel and the vacant possession the applicants were required to render was to stop tilling and or re-entering the subject land, contrary to the allegation that they stand to be evicted from parcel number South Ugenya/Simenya/789 which is the suit parcel, all the Applicants and family members of Zakayo Obala Ombiro reside on parcel number South Ugenya/Simenya/790. 13.The court is urged to call for a report from the lands office to confirm if indeed the Applicants are residing in parcel 789 as alleged so as to avoid wasting precious judicial time. Submissions 14.The application was dispensed by way of written submissions. The Applicants Submission 15.The applicants filed their submissions which addressed the court on the length of the delay and reasons thereof; the chance of the appeal succeeding if the application is granted; The degree of prejudice to the respondent if the application is granted; Conduct of the parties in seeking redress of the court. it is urged that there are no grounds for not allowing the leave to file the appeal out of time. 16.That the land the subject of this proceeding has been idle land and the respondents have not illustrated what prejudice they would suffer in their replying affidavit. The Respondents Submissions 17.Mr. Ooro appearing for the Respondents informed the court he would rely on the depositions in the Replying affidavit. Analysis and Determination 18.I have carefully considered the application, affidavit in support and in opposition thereto and the submissions on record. The following issues commend determination: -1.Whether the court should exercise its discretion to expand time for filing of an appeal out of time.2.Whether the application meets the threshold for grant of stay of execution.3.Who bears the Costs of the application? Whether the court should exercise its discretion to expand time for filing of an appeal out of time. 19.Jurisdiction to enlarge time is donated under the provisions of Section 79G of the Civil Procedure Act which reads; -“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 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”. 20.It is clear from the above provisions that the power donated above is discretionary provided that there is good and sufficient reason for the delay. Discretion however must be exercised judiciously. 21.In Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) the Supreme Court of Kenya outlined the elements which the Court must consider while determining a question of expansion of time thus; -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; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.’ 22.Applying the above guidance to the application herein, the judgement of the trial court was delivered on 15th December 2025. The present application was filed on 12th February 2026. The period for filing of an appeal from subordinate court is 30 days from the date of judgement or order appealed against. There is therefore a delay of approximately 27 days. 23.The reasons expressed for this delay are attributed to financial constraints and the need to comply with the provisions of Order 9 Rule 9 which requires the filing of a Notice of change of advocates and consent of the advocate on record as new counsel was coming on record post judgement. It is deponed that the previous counsel demanded his fees are settled first before release of the files and further that the law firms were on recess. The court has seen the letters dated 8/01/2026, 12/01/2026; email dated 12/2/2026; the relevant consent dated 2026 which all substantiate the reasons rendered. With regard to the recess the judgement was delivered on 15/12/2026 when ordinarily the recess starts around the 19th December 2026 and extends to the 2nd week of January. 24.I think based on the foregoing this court is persuaded there was good and sufficient cause for not filing the appeal within the required 30 days. 25.Was the delay inordinate or unreasonable? I think a delay of 27 days is not inordinate in the circumstances of this case. 26.The court is also enjoined to consider whether there will be any prejudice suffered by the respondents if the extension is granted. The respondents have expressed at paragraph 50 of the replying affidavit and on the advice of their counsel on record that for enlargement of time there must be a demonstration of the likelihood of the appeal succeeding if the application is granted. It is asserted that the appeal has zero chances of success and the reasons have been robustly explained. 27.It is important to note that at this juncture the court should not delve into the merits of the appeal. This must be reserved for the hearing. What is required instead is that the appeal raises arguable issues and an arguable appeal is not one that must necessarily succeed. 28.I will accord the opportunity for the intended appeal to be ventilated as opposed to burying it completely. Based on the foregoing the court shall exercise its discretion in favor of extending time for the applicants to file the appeal. Whether the application meets the threshold for grant of stay of execution. 29.An order of stay of execution has also been sought pending the determination of the intended appeal. Has the applicant met the prerequisite for grant of orders of stay of execution pending appeal? 30.The provisions of Order 42 rule 6(2) of the Civil Procedure Rules is on stay of execution and stipulate; -“No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. 31.Arising from the law above the grant of an order of stay of execution is at the discretion of the court. Three requirements can be distilled from the above firstly that substantial loss may result to the applicant unless the order is made, secondly that the application has been made without unreasonable delay, and thirdly such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. 32.On unreasonable delay I have already made a finding that the period of 27 days can be excused. 33.I think the main criteria is that an applicant must demonstrate to the court that they will suffer substantial loss in the absence of an order for stay execution – see the Court of Appeal pronouncement in Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) KAR 1018 that; -Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.’ 34.What amounts to substantial loss was expressed by the Court of Appeal in the case of Mukuma vs Abuoga (1988) KLR 645 where their Lordships stated that“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 35.To determine the above I must visit the final orders of the trial court. The judgement was in favor of the respondent herein where they were declared the bonafide and lawful proprietors of the parcel South Ugenya/Simenya/789. Further orders were that the defendants vacate the said land voluntarily within 60 days and upon failure they be evicted. The last order was for the Land Registrar together with the District Land Surveyor to proceed and place beacons demarcating the boundaries of the suit land at the costs of the defendants. 36.Starting with the order for eviction it has been deponed by the respondents that the land registrar had visited the parcel for purposes of restoring the beacons and that the vacant possession the applicants were supposed to render was to stop tilling and or re-entering. That the families of the applicants reside on parcel number South Ugenya/Simenya/790. 37.Firstly I must state that I have no evidence to confirm this deposition as to occupation in plot 790. But what is clear is that the costs of the identification of beacons is to be borne by the defendants. I see no basis to stop the land registrar from establishing the beacons since the same does not mean eviction. Moreover, this can never render the appeal nugatory since beacons can be removed and are not permanent fixtures. 38.With regard to occupation I think it would be prudent to have the status on the ground maintained but with conditions that there shall be no construction on the disputed parcel South Ugenya/Simenya/789 by the applicants. I say so because this is the main prejudice that the respondents raise and I also note they state they have not developed the land owing to the dispute though it is their legitimate share. 39.The court has not been addressed on the requirement for security for costs. The most immediate concern would be the costs for the beaconing and which I think must be deposited with the court in view of my finding that the establishment of the same will not render the appeal nugatory. Therefore, a sum of Kshs.50,000/- in this regard should suffice. 40.The upshot of the foregoing is that the application dated 12th February, 2026 partly succeeds. I will issue the terms later in this ruling. Application Dated 22nd February 2026 41.The applicant also filed a Notice of Motion application dated 22nd February 2026 seeking the leave of the Court to amend the Draft Memorandum of Appeal dated 12/02/2026. The application is premised on the depositions in the supporting affidavit sworn by Nichola Mombo the Advocate on record for the appellants. 42.The main grounds of the application is attributed to errors in citing the wrong judgement. It is proposed to delete the reference to the judgement of Justice W. Korir of the 19th of December 2025 and replace with that of Honourable Mr. Edward Tsimonjero dated 15th day of December 2025. The other amendments are to align the draft memorandum of appeal to the amendment deleting the reference to the earlier judgement of the High Court by deleting judge and replacing with ‘magistrate. 43.The application is not opposed. Mr. Ooro on 4/5/2026 chose to concentrate on the application for extension of time. 44.I note that the application does not cite the provisions under which it is brought. However, I will be guided by the need to render substantive justice rather than look at the technicalities. Moreover, this court has effectively allowed the filing of the applicants appeal against the judgement of Honourable Mr. Edward Tsimonjero dated 15th day of December 2025. 45.Order 8 Rule 3 of the Civil Procedure Rules provides for amendment of pleadings with leave of court as follows;(1)Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. 46.Further, Order 8, rule 5 gives the court the general power to amend5.(1)For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. 47.In the case of Central Kenya Ltd vs Trust Bank & 4 Others, CA No. 222 of 1998, the court stated that, ‘the guiding principle in amendment of pleadings and joinder of parties is that: all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.” 48.Applying the above, I have reviewed the proposed amendments as per the draft annexed. I have noted that the same are to correct an error to correct and read the judgement that is being appealed from. Indeed, the judgement being appealed had been attached in the earlier application for enlargement of time and was correctly cited as the judgement of Hon Tsimonjero delivered on 15/12/2025. I have not seen the inclusion of new grounds of appeal therein or any bad faith. I see no prejudice to be occasioned to the respondent. 49.The court therefore allows the application. Conclusion on Both Applications Application dated 12th February, 2026 50.The application dated 12th February 2026 is disposed in the following terms; -1.That leave be and is hereby granted allowing the Applicant to file appeal out of time against the judgement delivered by Hon. Edward Tsimonjero dated 15/12/2025 in Ukwala MCELC No. E036 of 2025.2.That pending the hearing and determination of the intended appeal the status quo shall be maintained as to occupation of the parties in the suit property South Ugenya/Simenya/789.3.That for the avoidance of doubt there shall be no new construction to be undertaken on South Ugenya/Simenya/789.4.The respondents are at liberty to proceed with the enforcement of the order that the Land Registrar together with the District Land Surveyor to proceed and place beacons demarcating the boundaries of the suit land at the costs of the defendants.5.The Defendants/Appellants shall deposit with the Court Kshs. 50,000/- within 45 days of this ruling being costs for the performance of order 4 above.6.The costs of the application shall abide the outcome of the Appeal.7.The present file shall be retained for purposes of the main appeal. Application dated 22nd February 2026 51.The application dated 22nd February 2026 is allowed to the extent that leave be and is hereby granted to amend the Draft Memorandum of Appeal dated 12th February 2026 as per the annexed Amended (Draft Memorandum of Appeal dated 22nd February 2026. There shall be no orders as to costs. DATED AT SIAYA THIS 7TH DAY OF JULY 2026HON. JUSTICE A. E. DENAJUDGE7/7/2026Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:Mr. Mombo for ApplicantN/A the RespondentsCourt assistant: Abuid Wekesa