https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3526

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELCC NO. 228 OF 2017** **JOSIAH OUMA OMOLO (Suing as the Legal** **representative of the Estate of** **CHARLES OMOLO ONYANGO....................PLAINTIFF/RESPONDENT** **-VERSUS-** **DAVID OWUOR RAGOT .......................1ST DEFENDANT/APPLICANT** **JAMES OBUDHO alias OBUDHO JAME………………...2ND DEFENDANT** **HELLEN AUMA OLOO………………………………..…….3RD DEFENDANT** **TIMON OLOO ODIRA………….…………………………..4TH DEFENDANT** **RULING** (On an application for lodging a Notice of Appeal out of time and stay of execution of a decree of this court) **The Application** 1. The Applicant herein filed an Amended Notice of Motion dated 9th October 2025. The one dated 9th October 2025 amended that dated 27th May 2025. The Amended one was anchored on Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Section 7 of the Appellate Jurisdiction Act, Order 50 Rule 1, Order 9 Rule 9 and Article 159 (2) of the Constitution of Kenya. He seeks orders that: 2. **The Honourable Court be pleased to reinstate the Notice of Appeal dated 23rd May 2025 and filed in Court on 25th May 2025 and the same be deemed as duly filed and served upon payment of the requisite court fees;** 3. **In the alternative, the Honourable Court be pleased to grant the Applicant herein leave to file Appeal out of time against the entire judgment delivered on 22nd May 2025 and the Notice of Appeal annexed hereto be deemed as duly filed and served upon payment of the requisite court fees.** 4. **…Spent** 5. **The Honourable Court be pleased to grant stay of execution of the Judgement and Decree herein pending determination of the intended appeal and/or until further orders of this Court.** 6. **Costs of this Application be provided for; and** 7. **The Honourable Court be pleased to make such further or other orders as it may deem fit and just to grant.** 8. The application is premised on several grounds outlined on the face of it as well as in the Supporting Affidavit of learned counsel David Owour Ragot, the applicant. He stated that judgment was delivered on 22nd May 2025 and its effect was, among others, the cancellation of the 1st and 3rd defendant’s titles to land parcels Kamagambo/Kanyajuok/480 and 476. The Court issued an eviction order also against the said defendants. He further stated that the court directed that the aforesaid orders did not apply to the 4th defendant, whose claim for adverse possession was to be determined separately. 9. Aggrieved by the finding of the court, the Applicant stated that he promptly filed a Notice of Appeal dated 23d May 2025 and served the same upon the Plaintiff/Respondent. After the service, the parties entered into negotiations aimed at an amicable post judgment resolution of the dispute. During the process, the Respondent convinced the Applicant to withdraw the Appeal he had preferred by way of Notice of Appeal. 10. However, as soon as the Applicant complied with the demands made to him by the Respondent, the latter abandoned the said negotiations and expressed his interest to continue with the execution of decree already been issued by the court. He also stated that the Respondent made the withdrawal of the Appeal a condition precedent to the above-mentioned negotiations. 11. The applicant, thus, maintained that the withdrawal of the Appeal was procured through misrepresentation on the part of the Respondent. He called upon this court to reinstate the Notice of Appeal and grant a stay of execution of its judgment pending the intended appeal. He added that the property in question was his family home, and that he had heavily invested in it, and he had reached the age of retirement. 12. In addition to the foregoing, the applicant maintained that his intended appeal had merit, and high chances of success. Further, he filed his notice of appeal promptly. He also stated that he was willing to abide by any conditions that this Court may impose. The applicant equally stated that his appeal would be rendered nugatory should execution proceed since it would occasion substantial loss that could not be remedied by way of damages. He stated that the interests of justice favoured the grant of the orders he sought. 13. The Applicant, in his supporting affidavit, deponed that the court on 22nd May 2025 rendered a judgment against him, in favour of the Respondent. Among the reliefs in the said judgment was an eviction order against the applicant. He annexed to the affidavit a copy of the judgment. He also deponed that he was dissatisfied with the judgment, and filed an appeal vide a Notice dated 23rd May 2025. He annexed a copy of the Notice of Appeal to his application. 14. The applicant deponed further that he withdrew the Notice of Appeal upon the advice of his counsel who urged him to agree to an out of court settlement commenced by the Respondent’s Advocates. The applicant also deponed that besides withdrawing the Notice of Appeal he deposited Kshs. 500,000/- as part payment of the damages awarded to the Respondent, as a demonstration of his good faith in the said negotiations. He annexed a copy of the Notice of Withdrawal of he Notice of Appeal and a letter dated 27th May 2025, marked as annexture DOR 4, which confirmed the payment of the said Kshs. 500,000/= addressed to M/s Orondo Tuli Advocate as the first instalment and proposed to pay the balance in the sum of KShs 104,146.75 per month effective October 2025. He added in his deposition that it was after the withdrawal of the Appeal that the respondent reneged on his promise. He stated that the property in question was worth Kshs. 24,500,000/=. He annexed a copy of a valuation report dated 5th June 2025. He deponed that the levying execution against would occasion him substantial loss. 15. The Applicant reiterated that the withdrawal of his Appeal was occasioned through misrepresentation. He prayed that the Notice be reinstated so that his Appeal could be heard on merit. He annexed a draft Memorandum of Appeal to his application to evidence that the intended appeal was arguable and had good chances of success. He also annexed an affidavit sworn by his former counsel, Raymond Ogwe Advocate, explaining the circumstances surrounding the withdrawal of his appeal. 16. Given the above set of circumstances the applicant prayed that this court grants him leave to appeal the judgment out of time, stating that the interest of justice would me met should his prayers be granted. **The Response** 1. The Respondent filed a Replying Affidavit sworn 21st November 2025 in response to the application. He deponed that this court had no jurisdiction entertain the instant application since the applicant sought in it leave to extend time to appeal before this court, instead of in the Court of Appeal. He also deponed that he was not party in the Notice of Appeal (the appeal) and only became aware of it when it was served upon his advocates. 2. Moreover, the Respondent deponed, he was not privy to any negotiations between the applicant and his counsel and as such, he was not aware of how the decision to withdraw the appeal was arrived at. He maintained that the Kshs. 500,000/= paid by the Applicant was a sign of good faith and a precondition to the grant of stay of execution orders. He contended that the applicant had not annexed any evidence to proof that the alleged negotiations ever took place. 3. Further to the foregoing, the Respondent deponed that the court had already pronounced itself concerning the ownership of the suit property. Again, that the applicant’s continued occupation of the property amounted to trespass save sfor the orders granted by this court extending stay of execution. 4. The Respondent further deponed that the instant application was a mere afterthought brought upon the applicant realizing that his previous application did not have any chance of success. Further, that the orders extending stay of execution were secured from the Court without disclosure of a material fact from the applicant, that is, that he had charged the suit property to Mwalimu National SACCO Limited. 5. Concerning the Affidavit by one Rayment Ogwe, counsel, the Respondent deponed that it should be should be struck out as the deponent swore on matters he was not privy to. He urged the court to balance the interests of the parties, considering that his family has been denied access to his family land and bearing in mind that the applicant had charged the suit property. 6. Finally, the respondent beseeched the court to consider the time taken to prosecute the matter, the legal fees involved and the risk of losing his family’s inheritance when making its determination. **Issues, analysis and determination** 1. I have carefully considered the application in its entirety as well as the response thereto and the submissions. The issues that arise for determination are: whether the court has jurisdiction to entertain this application; whether the applicant’s application for leave to extend time to appeal out of time is merited; whether the prayer for stay of execution pending appeal is merited; and lastly, who to bear the costs of the application. 2. It is a settled principle that whenever an issue of jurisdiction arises, the same should be addressed *in limine*. It is so cardinal that it ought to be taken up with immediacy of primacy. In **Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989)** (Judgment), (as per justice Nyarangi), jurisdiction is everything, and where a court lacks jurisdiction, it should down its tools once the court is seized with these facts. The court held that: *‘‘30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...’’* 1. The Respondent contended that this court does not have jurisdiction to entertain the instant application as it was filed before this court as opposed to being made in the Court of Appeal. The question that arises then is whether this court is seized with the jurisdiction to determine the application herein. In determining this issue, I refer to Section 7 of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya which provides on the issue as follows: *‘‘The high court may extend the time for giving notice of intention for appeal from a judgment of the high court or for making an application for leave to appeal or for a certificate that the case is for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired.’’* 1. A plain reading of the above provision renders that this court has the jurisdiction to determine an application for extension of time or leave to file a Notice of Appeal in the circumstances where there is there is none, such as in the instant application, considering that reference to the high court in the provision should be read to mean the Environment and Land Court (ELC) where the matters in question fall within the jurisdiction of this court. 2. On the issue of whether the application is merited, it is not in disputed that the application was brought five (5) moths after the withdrawal of the Notice of Appeal and the alleged negotiations that led to the said step. But it is also clear to me that the application was an amendment to one which was dated 27th May 2025 and filed on 28th May 2025. The Notice withdrawn had been filed within the 30 days provide for the filing of appeals from judgments or orders of this Court, as per Section 79 of the Civil Procedure Act. That means the court has to consider the reasons advanced for the delay. 3. In**Adana v Ogora (Civil Appeal E006 of 2021) [2025] KEHC 1462 (KLR) (12 February 2025) (Ruling), the court held that:** *‘‘In considering the issue of timely filing of the appeal which is germane to this case, this court is guided that discretion to extend time is unfettered. There is no limit to the number of factors the Court would consider so long as they are relevant. These factors include but are not limited to the period of delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, or whether the matter raises issues of public importance. All are relevant but not exhaustive factors.’’* 1. In **Edith Gichungu Koine v Stephen Njagi Thoiti [2014] eKLR,** the Court of Appeal reasoned that: ***‘‘****8. I have anxiously considered the application, the affidavits on record and the submissions of counsel. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst* 1. The Applicant withdrew the Notice on 27th May 2025. He contended that negotiations between him and he Respondent through counsel had been entered into by the parties herein with a view to reaching an amicable resolution of the dispute. He maintained that the negotiations were initiated at the request of the Respondent. He also stated that sum of Kshs. 500,000/- was paid as a sign of good faith in carrying on with the negotiations, which demand or condition had been made by the Responded who insisted that the Applicant settles part of the damages awarded. 2. The Applicant maintained that once the above stated payment was made and the notice withdrawn, the Respondent reneged on his word and sought to levy execution against him. The Respondent on the other hand denied knowledge of the negotiations. He insisted that the Applicant should have availed evidence to prove that the negotiations happened. He further deponed that the Kshs. 500,000/= was paid as a precondition to the extension of stay orders by the court. 3. It is trite that he who alleges must prove and this position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: **“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. Sections 109 and 112 of the same Act states as follows: **“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.** **112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”** 1. It is trite that as per the provisions cited, it was the Applicant who bore the burden of proof that negotiations giving rise to the withdrawal of the Notice of Appeal took place. But when the Respondent put forth the claim that the sum paid by the Applicant was paid good faith for extension of stay of execution it was obligatory for the Respondent who, upon receiving the sum of KShs 500,000/= which had not been ordered by the Court or other regulation, bore the burden to prove that it for that reason of extension of stay and not as a result of the alleged negotiations. 2. The court carefully examined the assertions and the record. The impugned judgment was rendered on 22nd May 2025 and on 23rd May 2025 the applicant lodged the Notice of Appeal in this matter. The instant application was brought on 17th November 2025 vide an Amended application 9th October 2025. It is true that the applicant withdrew his Notice of Appeal on 27th May 2025. The Sum of KShs. 500,000/= was paid at that time to M/s Orondo Tuli Advocate who was learned counsel for the Respondent vide a cheque. The receipt of the remittance is not denied. Instead, the Respondent argues that he was neither aware of the negotiations between his lawyer and the applicant. Rather that the payment was in good faith for the parties extending the period of stay of execution. 3. This court asked itself a number of unanswered questions which lead it to make a finding in favour of the applicant. If the sum of KShs 500,000/= was for stay of execution extension, what was it to extend stay of execution for? First, I note that there was no extension of execution either signed as a consent between the parties or applied for and agreed upon before the court. Thus, if there was no appeal in place or to have been in place, why would the parties extend stay of execution, and for what purpose? Given that the decree or certificate of taxation had not been issued, what nature extension of stay of execution was to be in place? How was it co come about without negotiations leading to it being in existence? Why would the Respondent deny knowledge of such negotiations yet he had counsel who received the money in issue, and who has not sworn an affidavit to the contrary? Did the counsel not have the Respondent’s instructions in the matter? It is my humble deduction after all those questions were posed that the withdrawal of the Notice was as a result of a request from or agreement between the applicant and the counsel for the Respondent. 4. In any event, on 18th June 2025, when the parties appeared before this court, counsel for the respondent invited the applicant’s counsel for talks, arguing that the applicant’s application for stay of execution as well for extension of interim orders was premature. He added that if the applicant wished to negotiate the matter he was at liberty to reach out to them. Although the respondent deponed that neither himself not his counsel was aware of the alleged negotiations, I am convinced that there were negotiations as of June 18th 2025. The reason for the delay is justifiable. 5. Moreover, I have not seen any condition imposed by the court for extension of stay orders so as to justify the payment of the KShs. 500,000/=. I also hold and find that the applicant had filed his Notice of Appeal within time before the same was withdrawn. But for these negotiations, the applicant would not have withdrawn the said notice of appeal. 6. On the issue of stay of execution, the conditions that must be met by an applicant seeking stay of execution orders pending appeal have been provided in order 42 rule 6 of the civil procedure rules and reiterated in various precedents. Order 42 rule 6 (1) of the civil procedure rules provides that: *No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order, but the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any such person aggrieved by such an order of stay made by the court whose decision the appeal is preferred may apply to the appellate court to have such order set aside (Emphasis added).* 1. Further, **Order 42 rule 6** **(2)** provides for the conditions that the court ought to factor when dealing with an application for stay of execution pending appeal, thus: No order for stay of execution shall be made under sub-rule (1) unless – 1. the court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without a reasonable delay; and 2. such security as the court orders for the due performance of such decree of order may ultimately be binding on him has been given by the applicant (emphasis added). 3. As to whether the applicant would suffer substantial loss, I note that the matter in issue relates to a property which the applicant states to he his family home. I note that levying execution against the same may render the intended appeal nugatory. The applicant may not be compensated by way of damages should he been successful in the appeal. 4. The question of delay has already been addressed before because the initial application was brought only three days after the withdrawal of the Notice of Appeal. This was the application amended and filed on 17th November 2025. That period was very short: only three days and then an amendment to the application made five or six months later. 5. As to issue of security for cots, the applicant has already paid ksh.500,000/=. I thus find that an additional sum of KShs 50,000/= would be reasonable security for costs. It is “additional” in the sense that besides the sum the applicant paid to the Respondent which he is to remain retaining, the applicant is to deposit in court the said KShs 50,000/= within the next thirty (30) days as security for the due performance of the decree, in default the stay to lapse. 6. From the above, a case for the grant of a stay of execution has been made. 7. The upshot is that, I am convinced that the withdrawal of the Notice was due to the facts of the existence of negotiations which gave rise to a part payment of KShs 500,000/= which the Respondent says was in good faith. How did he know it was good faith if there were no negotiations between themselves? How was there to be good faith for no other reason than the existence of negotiations? If it was not part of negotiations which are implied by the letter which reads that the applicant had paid the sum as an initial deposit, and he would be willing to pay the rest in installments of KShs 104, 146.75/= then why did the Respondent not return or reject the payment unexpected or not called for? 8. In my view, the acceptance of the fact of good faith having existed between the parties and that of acceptance by the Respondent of the part payment of the sum due, for whatever it was, is testament that there were negotiations between the parties, which faltered and the Respondent now wanted to take advantage of absence of an appeal to proceed with execution to the detriment of a party who entered into negotiations in good faith. Such conduct is unconscionable and amounts to undercutting one party and it is a misrepresentation on the part of the Respondent. To permit it to hold sway would mean that the applicant shall have been disingenuously disenfranchised of his right to appeal. In my view, the one Notice of Appeal withdrawn cannot be reinstated. I therefore grant the prayer to file a fresh Notice of Appeal which is to be lodged and served within the prescribed period. I also grant a stay of execution in terms of the conditions stated in **paragraph 37** above. 9. As to who should bear the costs of the application, Section 27 of the civil procedure act provides that costs follow event and the same are awarded at the discretion of the court. I will exercise this discretion and award costs to the applicant. 10. Orders accordingly. **RULING** Dated **Signed** and **Delivered** virtually via the Teams Platform this **08th day of June 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE** **From 14:32 PM in the presence of:** Mr. Owino Sam Advocate for the Defendant/Applicant Mr. Orondo Tuli Advocate for the Respondent