https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3512

Naitawang v Ongwacho (Environment and Land Appeal E023 of 2025) [2026] KEELC 3512 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3512 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Appeal E023 of 2025 MN Mwanyale, J June 11, 2026 Between Paul Lemayian Naitawang Appellant and Abel Moranga Ongwacho Respondent Ruling 1.The application by way of Notice of Motion dated 16th October 2025, seeking leave of the court for the Applicant/Intended cross-Appellant to file a cross Appeal against the Judgment in Kilgoris MELC No. 29/2019 (Abel Moranga Ongwacho Vs. Paul Lemayian Naitwang and Another) is subject of this Ruling. 2.In support of the application is that the Appeal was filed late because of delayed in obtaining copies of the judgment and proceedings in MCELC No. 29/2019. 3.That the judgment had not been typed and the handwritten judgment was illegible thus making formulation of the grounds of Appeal difficult. 4.That the intended Appeal has chances of success and the delay is not inordinate, no record of Appeal has been filed yet. 5.In support of the application is the supporting affidavit of the Applicant Mr. Abel Moranga Ongwacho who reiterates the grounds in support of the application, and has annexed copies of an order directing proceedings to be typed, and a copy of Draft Skeletal Memorandum of Cross-Appeal. 6.The Application is opposed by a Replying affidavit of the Respondent Mr. Paul Lemayian Naitwang who deposes interalia, that;i.The application is frivolous, vexatious full of half-truths and an abuse of the court process; as the unavailability of typed and certified copies of the judgment and proceedings does not constitute a legal or procedural bar to the filing of the cross- Appeal; in that grounds of Appeal are drawn from the judgment and decree and not from typed proceedings; and that the Applicant could have filed the cross-Appeal timeously and seek to amend later if the grounds were inadequate.ii.That a cross-Appeal is dependent on a proper Appeal.iii.That as the judgment was delivered on 28th April 2025, the application filed in October 2025, was filed late without any reasonable excusable hence the delay was inadvertent and not excusable; with no compelling reasons advanced thereof. 7.The parties were directed to file submissions on the Application. Mr. Jonyo Learned Counsel for the Applicant opted not to file any submissions but rely on the application as filed while M.s Wangui learned counsel for Respondent filed brief submissions. Respondent’s Submissions 8.The Respondent submits that the Applicable framework in relation to a cross-Appeal as followsa.Rule 4 of the Court of Appeal Rules.b.Section 79G) of the Civil Procedure Act.c.Article 159(2)(d) of the Constitution of Kenya 2010. 9.The Respondents cited the decision in Mwangi and Another Vs. Wambugu Civil Appeal 77 of 1982 (1984) KECA 13 KLR as well as Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi (1999) EA23 as laying down the principles for extensions of time. 10.On the length of delay, the Respondent submits that there is a delay of about 90 days which is inordinate and the reason advanced, to wit, that the proceedings were not ready is not sufficient. 11.On the basis of the above the Respondent submits that the application be dismissed. Issues for Determination 12.Upon review of the application, the Affidavits, the submission and a consideration of the law, the court frames the following as issues for determinationa.Whether or not the Application is merited? In determining this the court shall firstly determine whether the Application has met the threshold for extension of time?b.What reliefs ought to issue?c.Who bears the costs of the Application? Analysis and Determination? 13.The application for extension of time having been made before the ELC Court, as a superior court meaning that the court of Appeal Rules do not apply and the court finds Ms. Wangui’s submissions that the cross-Appeal be guided by they Court of Appeal Rules, to be erroneous. 14.As this is an application for extension of time, the court is guided by the principles laid in Leo Silla Mutiso vs. Rose Hellen Wangari Nairobi Civil Application 255/1997 where the court held interalia; "it is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary, it is also settled that in general the matters which the court takes into account in deciding whether to grant an extension of time are first the length of the delay, secondly the reason for the delay, the chances (possibly) of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the Respondent if the application is granted." 15.On length of the delay, the application was filed 5 months after delivery of judgment. That delay is not inordinate. 16.On the reasons for the delay, the Applicant states that the delay was caused by delay in typing of proceedings and the judgment, as the judgment delivered was handwritten and not legible. 17.I have taken judicial notice that the judgment uploaded on the CTS on 05.05.2026 was handwritten and the Applicant thus has a valid reason. 18.An Appeal is ordinarily commenced by way of the Memorandum of Appeal and a cross-Appellant is at liberty to file a cross-Appeal once a Memorandum of Appeal has been file. 19.The Applicant has thus met the threshold for the grant of an extension of time to file a cross-Appeal and his application is merited. 20.The Application is thus allowed in terms that; -i.Leave is granted for the Intended cross-Appellant/Respondent to file his Memorandum of cross-Appeal within 14 days from today.ii.As the proceedings have been typed, the Appellant to file the Supplementary Record of Appeal within 45 days from today.iii.Appeal to be listed for directions on 16.07.2026.iv.Costs of the application to abide by the Appeal. DATED AT KILGORIS 11TH DAY OF JUNE 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMr. Jonyo for ApplicantMs. Wangui for Respondent