https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4372

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT SIAYA** **ELC. MISC. APPL. CASE NO. E001 0F 2026** **IN THE MATTER OF AN INTENDED APPEAL** **BETWEEN** **MARGARET AWUOR OMONGO ................................................. APPELLANT/APPLICANT** **-VERSUS-** **PETER OCHIENG AREK ............................................................................... RESPONDENT** **RULING** 1 This Ruling is the subject of the Notice of Motion application filed on 14th January 2026 by Margaret Awuor Omongo. The Applicant seeks the following orders: 1. Spent 2. THAT pending the hearing and determination of this Application inter-partes, there be a stay of execution of the Judgment and all consequential orders arising therefrom. 3. THAT the Applicant be granted leave to file and prosecute an Appeal out of time against the Judgment delivered on 31st August 2023 in UKWALA ELC No. 28 of 2019. 4. THAT costs of this Application abide the outcome of the intended Appeal. 5. The application is premised on the grounds on its face and the depositions of the supporting affidavit sworn by Margaret Awuor Omongo. The Applicant avers that the Judgment was delivered without her knowledge or notice, as her then Advocate failed to inform her of either the date or fact of delivery of the Judgment, thereby extinguishing her statutory right of appeal through no fault of her own. 6. The Applicant states that she independently discovered the existence of the Judgment in June 2024, whereupon she acted promptly by changing Advocates and instructing her current Advocates to pursue an Appeal. On 16th July 2024, her Advocates applied for certified proceedings and judgment and issued a reminder on 23rd July 2024. However, when proceedings were supplied on 6th November 2024, they were materially defective, containing errors and blank portions making it impossible to extract intelligible grounds of appeal. 7. The Applicant depones that despite assurances by the trial court, corrected proceedings have not been supplied to date, thereby frustrating her constitutional right of access to justice. She avers that the delay is fully explained, reasonable, and excusable, having been occasioned by advocates omission and prolonged institutional delay beyond her control. 8. Additionally, the Applicant states that on 13/01/2026 she was summoned by the District Land Registrar to execute transfer and subdivision documents pursuant to the impugned judgement which she declined to sign. She was then informed that execution would proceed. She avers that the same will expose her to imminent dispossession and inversible alteration of the parcel register before the appeal is heard. 9. It is deponed that that she was never a party to the alleged land sale agreement, being a daughter-in-law of the late Margaret Otieno (the alleged contracting party who died before the agreement could be perfected). That she never took out Letters of Administration to the deceased's estate and therefore lacked legal capacity to be sued. 10. That despite the above fundamental defect the trial court issued orders of specific performance and monetary compensation against her personally, contrary to the Law of Succession Act and settled principles of privity and capacity. 11. The Applicant urges that the suit land is her only home and sole source of livelihood, and that dispossession without a hearing on merit would be oppressive, unjust and unconstitutional, particularly given her advanced age of 76 years and vulnerability. 12. The Applicant states she has an arguable appeal with high chances of success and the same ought to be heard on merit. The draft Memorandum of Appeal is annexed. **The Respondent's Case** 1. The Respondent opposes the Application through his Replying Affidavit sworn on 23rd January 2026. He contends that the Application is malicious, vexatious, a gross abuse of the court's process and totally without merits. 2. The Respondent avers that the Applicant and her advocates have always been aware of the Judgment from when it was delivered on 31st August 2023, as the Applicant's then Advocate, Mr. Charles Odhiambo Odera from the firm of Odhiambo Odera & Co. Advocates, was present in court alongside the Respondent's advocates and took the Judgment on behalf of his client. 3. The Respondent further asserts that on 21st November 2023, his advocates served the Applicant's then advocates with a copy of the prepared Bill of Costs, and that a Certificate of Costs was duly assessed and issued on 28th February 2024, neither of which was ever objected to by the Applicant or her Advocates. 4. That orders or directions of the court are not meant for cosmetic purposes but ought to be complied with. 5. The Respondent contends that it took the Applicant over two years from the date of Judgment to seek to file an appeal, and that the court should not be used as a forum for shopping or time wastage. 6. That the Applicant should not hide under the provisions of Article 159(2)(2) of the Constitution since the same is not a panacea for all proce4dural shortfalls. 7. He prays that the Application be dismissed with costs. That in the alternative, if the Court is inclined to allow the Application, that throwaway costs of Kshs. 100,000/= be awarded to the Respondent payable within 14 days. 8. The applicant cited several court authorities in support of the foregoing and which have been noted by the court. **SUBMISSIONS** 1. The application was heard by way of written submissions which both parties filed and exchanged **Applicant's Submissions** 1. The Applicant filed written submissions dated 1st May 2026, drawn and filed by Onyango, Jonyo & Company Advocates. The Applicant identifies three issues for determination as follows; - 2. On leave to appeal out of time, the Applicant anchors her submissions in Section 79G of the Civil Procedure Act, submitting that the discretion to admit an appeal out of time is wide but must be exercised judicially. Reliance is placed in ***Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR***, and ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi (Court of Appeal, Civil Application No. NAI 255 of 1997)*** on length of delay, reason for delay, chances of success, and degree of prejudice to the respondent. 3. The court is also referred to ***ELCMISC/E008/2025, Petronila Achieng Oduor v Pius Oduor Omog***, a decision of this Court reaffirming that a litigant who has demonstrated effort to pursue justice should not be shut out merely on account of delay. 4. It is asserted that mistakes of counsel, even blunders, should not be visited upon clients where the situation can be remedied by costs and which should not bar a party from being heard on merit. The court is referred to ***Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 Others [2013] KEHC 681 (KLR),*** ***Philip Keipto Chemwolo v Augustine Kubende [1986] eKLR,.*** Further that an arguable appeal need not succeed but only raise bona fide issues as held in **Gicharu *v Waweru [2025] KEHC 2565 (KLR),*** affirming 5. The Applicant submits that she has discharged the burden of establishing sufficient cause. She was not informed of the Judgment by her former Advocate; she acted promptly upon discovering it; the subsequent delay was caused by the trial court's failure to supply complete and accurate proceedings; and the intended Appeal raises weighty issues of legal capacity, privity of contract, and the proper standard in undefended proceedings. She contends that the Respondent's argument that her Advocate was present in court at the time of delivery of Judgment is insufficient, since the duty to inform rests upon counsel, and a client cannot be condemned for a breach of that duty. 6. On stay of execution, the Applicant relies on Order 42 Rule 6 of the Civil Procedure Rules and submits that substantial loss is clearly established: once the land register is altered through transfer and subdivision, the substratum of the appeal is irreversibly destroyed. The applicant draws guidance from ***James Wangalwa & Another v Agnes Naliaka Cheseto and Mukuma v Abuoga [1988] KLR 645*** and Petronila Achieng Oduor (supra), where the Court held that where failure to grant a stay would render the appeal nugatory, the stay must issue. The Applicant notes that in the same decision, the Court declined to impose security where the decree was non-monetary. 7. On prejudice to the Respondent, the Applicant submits that the Respondent has demonstrated no specific prejudice that cannot be compensated by costs, while the Applicant stands to lose her only home. She concludes that the balance of justice tilts decisively in her favour and that justice demands that the Application be allowed in its entirety. **Respondent's Submissions** 1. The Respondent filed written submissions dated 10th March 2026, drawn and filed by Jesse David, Ochanyo & Kurgat Advocates LLP of Siaya. The Respondent identifies two issues for determination. 2. On leave to appeal out of time, the Respondent invokes Section 79G of the Civil Procedure Act and the ***Nicholas Kiptoo Arap Salat*** principles, relying additionally on ***Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR and Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR***. He submits that the Application is malicious, vexatious, and a gross abuse of court process. He avers that the Applicant's former Advocate was present in court when Judgment was delivered, that post-judgment documents were served without objection, and that the Applicant had personal notice of the Judgment and the threatened execution, yet deliberately delayed for over two years before seeking to appeal. 3. The Respondent relies on ***Jacklyn Wanjira Njeru v Equity Bank (Kenya) Limited and Another (2020) eKLR*** urging thatthe court's discretion should not be exercised to assist a party that has deliberately sought to obstruct or delay the course of justice. He also relies on ***Teacher's Service Commission v Kenya National Union of Teachers & 2 Others, Petition No. 23 of 2013*** f on the sanctity of court orders, submitting that the Decree of the Principal Magistrate's Court remains a valid, subsisting order that must be respected. 4. The Respondent submits that the Applicant should not be permitted to hide behind Article 159(2)(d) of the Constitution and draws from the Supreme Court decision in ***Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 Others [2014] eKLR***, affirming the dicta of Kiage JA in ***Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR***, that Article 159 is not a panacea for procedural shortfalls and that courts must not provide shelter to parties who exhibit scant respect for rules and timelines. 5. On stay of execution, the Respondent submits that the conditions under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules have not been met. He relies ***on Muchiri v Rutere (ELC Consolidated Case Nos. 319 & 316 of 2017) [2023] KEELC 22377 (KLR)*** and the Court of Appeal's guidance in ***Butt v Rent Restriction Tribunal (1982) KLR 417***, while arguing that the Applicant has not demonstrated substantial loss, has come before the Court with unclean hands, and is not entitled to the equitable relief she seeks and relies on ***John Njue Nyaga v Nicholas Njiru Nyaga & Another (2013) eKLR***. 6. Further, the Respondent submits that he should be allowed to enjoy the fruits of his judgment and draws support from ***Gideon Mose Onchwati v Kenya Oil Co. Ltd & Another [2017] eKLR***. He invites the Court to dismiss the Application but, in the alternative, requests throwaway costs of Kshs. 100,000/= payable within 14 days as a condition of any grant of leave, relying on ***Sheila Wambui Muturi v Peter Macharia Muiru [2017] eKLR***. **ANALYSIS AND DETERMINATION** 32 I have keenly considered the Notice of Motion application, the Affidavits, the written submissions of both parties, the cited authorities and the relevant provisions of the law. 33 From the pleadings and submissions, the following issues commend determination: 1. whether the Applicant has met the conditions for grant of leave to appeal out of time; 2. whether the Applicant has satisfied the conditions for grant of a stay of execution 3. Who bears the costs of this application? **Whether the Applicant has met the conditions for grant of leave to appeal out of time;** 34 The power to extend time for filing an appeal is donated by Section 79G of the Civil Procedure Act which provides: ***"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."*** 35 The discretion vested in the court is wide but must be exercised judiciously. Both parties are agreed on this test set out by the Court of Appeal in ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi*** that the court should consider the length of the delay; the reason for the delay; the chances of the appeal succeeding if leave is granted; and the degree of prejudice to the Respondent if leave is granted. 1. 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 had this to say;- ***‘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.*** 1. Applying the above to the present application it is noteworthy that the Judgment was delivered on 31st August 2023. The statutory thirty-day period for filing an appeal expired on or about 30th September 2023. The present application was filed on 14th January 2026, a delay of approximately two years and three months beyond the Judgment date, and over two years beyond the expiry of the 30-day period for filing appeal from a subordinate court to this court. The delay is indeed substantial. However, the question that I need to address is whether it has been satisfactorily explained. 2. The Applicant attributes the delay to three distinct factors: firstly, her former Advocate's failure to notify her of the delivery of the Judgment (covering the period August 2023 to June 2024); secondly, the trial court's institutional delay in supplying certified proceedings (covering July 2024 to November 2024); and thirdly, the defective nature of the proceedings when eventually supplied (covering November 2024 to January 2026). 3. The Respondent disputes the first cause, pointing to the presence of the Applicant's previous Advocate in court on the day the judgment was delivered. This Court has considered this argument. For me, the presence of an advocate in court on the day a judgment is delivered does not, of itself, establish that the advocate thereafter communicated the fact and substance of that judgment to the client. The professional obligation to inform the client of the outcome of their case is fundamental. The inference he invites this Court to draw from the Advocate's mere presence in court is insufficient to displace the Applicant's sworn averment. 4. This Court is further guided by ***Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 Others [2013] KEHC 681***, and echoed in ***Philip Keipto Chemwolo v Augustine Kubende [1986] eKLR***, that mistakes of counsel, even blunders, should not be visited upon a client where the situation can be remedied by costs and where the justice of the case so demands. The right of appeal is a fundamental right. Its loss through advocate omission, without the client's fault or knowledge, is among the situations where the courts have consistently leaned in favour of a deserving applicant. 5. The Court of Appeal in the case of **Belinda Murai & 9 Others V Amos Wainaina [1979] KECA 25 (KLR)** stated thus: - “A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. *The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.* 1. On the second cause, the documentary evidence confirms that the Applicant's new Advocates applied for certified proceedings on 16th July 2024 and issued a reminder on 23rd July 2024. This delay in my view is minimal and I will not overemphasize the issues. 2. On the third ground, the Applicant avers that the proceedings supplied on 6th November 2024 were materially defective. The Respondent has not directly addressed this averment. While this Court cannot, at this interlocutory stage, independently verify the extent of the defects, it notes that this averment stands uncontroverted and must be taken at face value for present purposes. 3. This Court therefore finds that the delay, though substantial, has been reasonably and sufficiently explained. The period from August 2023 to June 2024 (approximately ten months) is attributable to advocate omission. The period from June 2024 to November 2024 (approximately five months) is attributable to institutional delay in the supply of certified proceedings. The remaining period to January 2026 is partially explained by the defective nature of the proceedings and the continued effort to obtain corrected copies. Taken in its totality, the explanation offered by the Applicant is credible, grounded in verifiable events, and consistent with good faith. It does not describe a litigant who is indolent or who has deliberately sought to obstruct or delay the course of justice. 4. On the chances of the appeal, indeed it is instructive that this Court is not required at this stage to determine the merits of the intended Appeal. The threshold is whether the intended Appeal is arguable — whether it raises bona fide issues that deserve to be heard. I will again emphasize that an arguable appeal needs to succeed, it should only raise an arguable issue that should fully be ventilated before the appellate court – see the case of ***Gicharu v Waweru [2025] KEHC 2565***, 5. The draft Memorandum of Appeal has been annexed and which I have perused. Issues of capacity and locus standi, privity of contract have been raised all which in my view could prima facie go to the root of the judgement and must be ventilated on merit. 6. On the issue of prejudice on the part of the respondent, the Respondent is a litigant who obtained Judgment in 2023 in respect of a transaction dating to 1994. His entitlement to the fruits of his judgment is not in question. He has waited a long time. Any further delay caused by the grant of leave and the prosecution of an appeal is a genuine inconvenience. 7. However, the Respondent has not demonstrated any specific, irreversible prejudice that would flow from the grant of leave. He has not shown that he will be unable to execute the Judgment if the Appeal ultimately fails; the land parcel remains as it is, and the Decree remains alive. Any financial inconvenience arising from the delay is compensable through an appropriate award of costs. Indeed, the respondent has proposed throwaway costs of Kshs. 100,000/=. 8. This Court is therefore satisfied that the prejudice to the Respondent, while real, is not of such a nature or degree as to outweigh the interests of justice in allowing the Applicant to be heard on appeal. 9. Both parties have addressed this Court on Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard to procedural technicalities. The Respondent correctly relies on the Supreme Court's guidance in ***Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 Others [2014] eKLR***, affirming the dicta of Kiage JA in ***Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR***, that Article 159 is not a panacea for all procedural shortfalls, and that rules and timelines are themselves instruments of justice. 10. This Court fully accepts the above principle that Article 159(2)(d) does not give courts a licence to ignore rules of procedure whenever a hard case arises. However, the Supreme Court also qualified the above by stating that Article 159(2)(d) is to be applied on a case-by-case basis. This is precisely one such case. The Applicant has offered an explanation, grounded in advocate omission and institutional failure, and has raised arguable grounds touching on fundamental questions of legal capacity and contractual obligation. In such circumstances, Article 159(2)(d), read together with Article 48 (access to justice) and Article 50 (right to a fair hearing), strongly supports the grant of the relief sought. 11. I think I have said enough to show why the courts discretion should be exercised in favor of the applicant. **Whether the Applicant has satisfied the conditions for grant of a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules;** 1. The jurisdiction of this court to grant a stay of execution pending appeal is founded upon Order 42 Rule 6 of the Civil Procedure Rules which provides as follows: ***"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."*** 1. It is evident from the above provisions that power to grant stay of execution pending appeal is an exercise of discretion of the court on sufficient cause being shown by the Applicant that substantial loss may result to the applicant if the orders are denied; the application should be made without undue delay and the court will impose such security for the due performance of any decree or order as may ultimately be binding on the Applicant. See ***Amal Hauliers Limited Vs Abdulnasi Abukar Hassan (2017) eKLR & Butt Vs Rent Tribunal (1982) KLR 417 and Antoine Ndiaye v African Virtual University [2015] eKLR*.** 2. The primary relief in the Decree is an order of specific performance requiring the surrender of a title deed and the subdivision of land parcel LR. No. UHOLO/UGUNJA/3790. Once the title deed is surrendered and a subdivision effected, the land register will be permanently altered. The Applicant would be dispossessed of a portion of what she describes as her only home and sole source of livelihood, and the substratum of the intended Appeal would be destroyed. It would be virtually impossible to restore the status quo should the Appeal succeed. These facts constitute substantial loss and if not prevented, would render the appeal nugatory. This Court is satisfied on this element. 56 On security: the Decree has an alternative monetary limb of Kshs. 895,000/= in damages and reimbursement, plus assessed costs of Kshs. 182,455/=. The court will provide for thrown away costs. 57 Having found that all the conditions under Order 42 Rule 6(2) are satisfied, this Court finds that a stay of execution should issue, subject to the conditions detailed in the orders below. **Who bears the costs of the Notice of Motion application** 58 This Court is of the considered view that the costs of this application ought to abide the outcome of the appeal and be borne by the party who ultimately fails at the appellate level. 59 The upshot of the foregoing is that the application is merited on both limbs and is disposed in the following terms 1. Leave be and is hereby granted to file and prosecute an Appeal out of time against the Judgment delivered on 31st August 2023 in Ukwala ELC No. 28 of 2019 2. The Applicant shall file and serve the Memorandum of Appeal and Record of Appeal within twenty-one (21) days from the date of this Ruling; 3. The applicant shall pay thrown away costs of Kshs. 100,000 to be deposited with the respondent’s counsel within 21 days of this ruling 4. In default of 2 & 3 above the leave herein shall automatically be vacated and the Respondent shall be at liberty to proceed with execution. 5. Costs shall abide the outcome of the main appeal. **Delivered** and **Dated This** **9th Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **9/7/2026** **Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** M/s Chepkurui holding brief for Mr. Jonyo for applicant Mr. Ochayo for Respondent Court Assistant: Abiud Wekesa **\**