https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4901

Kiboi v Ole Lemunke (Environment and Land Miscellaneous Case E004 of 2026) [2026] KEELC 4901 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEELC 4901 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Miscellaneous Case E004 of 2026 MN Mwanyale, J July 29, 2026 Between Paul Lemiso Kiboi Applicant and Leparakuo Ole Lemunke Respondent Ruling 1.The application dated 16.04.2026 filed by the Applicant as a prose litigant seeks the substantive prayers as follows; -i.The Applicant be granted leave to Appeal against the entire Ruling and order of the Honourable C.W. Waswa (SRM) delivered on 29th of January 2026,ii.That there be a stay of execution of the said Ruling and order (including the order as to costs) pending the hearing and determination of this Appeal. 2.The grounds in support of the Application being interalia;i.Applicant has a prima facie arguable appeal, since the learned magistrate outsed his own jurisdiction without a valuation report.ii.The Respondent will not be prejudiced if the suit is reinstated for hearing on its merits.iii.The application is further supported by the supporting affidavit of the Applicant Paul Lemiso Kiboi, who reiterates the grounds in support of the application in his depositions and has annexed a copy of the impugned Ruling, as well as Draft Memorandum of Appeal and a copy of a taxation Ruling and a copy of cash bail receipt. 3.The application is opposed by the Replying affidavit of Leparakuo Ole Lemunke who deposes that the Applicant participated in the proceedings before the trial court and was aware of the date when ruling was delivered and only woke up after being served with a certificate of taxation on 1st April 2026 and the application is meant to delay the execution and enjoyment of fruits of judgment. 4.That the orders of stay cannot be issued in respect of a negative order. 5.That the Applicant missed the reasoning of the court that led to the dismissal of the suit. 6.The court directed filing of submissions in respect of the application. 7.The Applicant a prose litigant framed and submitted on 4 issues for determination,i.He submitted on issued No. 1 as to whether the application satisfies the threshold for certification as urgent and the court shall not dwell on this issue as the same is moot.ii.The Applicant on issue No. 2 submitted that the court erred in striking out the suit and placed reliance on the decision on owners of Motor Vessel Lilian which the court finds not to be relevant in this application.iii.On the 3rd issue of stay of execution and irreparable harm the Applicant submitted on Giella Vs. Cassman Brown Ltd and submitted that the same applies.iv.On the strength of the above submissions the Applicant sought for the court to allow the application. 8.On his part the Respondent through his counsel framed two issues for determination on issue No. 1,i.the Respondent submitted that the Applicant had not demonstrated sufficient cause to warrant the exercise of discretion to extend time to file an Appeal out of time as was stated Nicholas Kiptoo Arap Koris Salat, Vs, IEBC and Leo Silla mutiso Vs. Rose Hellen Wangari Mwangi.ii.That the acute financial hardship reason advance is not supported by evidence, and that the Memorandum of Appeal reveals no arguable appeal.iii.On the 2nd issue of whether the Applicant has satisfied the conditions for stay, the Respondent submits that a dismissal order is a negative order and that the Applicant does not deserve the orders sought. 9.The issues for determination in the court’s view are;i.Whether or not the Applicant has met the threshold ofa.Extension of time.b.Stay of execution so as to render the Application merited?ii.What reliefs ought to issueiii.Who bears the cost of this application? Analysis and Determination 10.The principles for extension of time to file an Appeal were stated in the decision in the case of Leo Silla Mutiso Vs. Rose Hellen Wangari, where the court stated the principles for extension, "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” 11.Applying the principles to the present application. On the length of the delay, the impugned Ruling was delivered on 29th of January 2026. The application herein was filed on 16.04.2026. There was a delay of about 3 and ½ months. This delay was not an inordinate delay. On the reasons for the delay, the Applicant contends that he fell in an acute financial hardship as he was required to pay cash bail of 20,000/= in another matter. 12.The court takes judicial notice that a Memorandum of Appeal attracts a court fee of Kshs.1,550/= and that this amount is not a staggering amount so as to cause an acute financial hardship hence delaying filing the Memorandum of Appeal. 13.The court finds the reason to be far-fetched but gives the applicant the benefit of doubt and accepts the same as sufficient reason for the delay. 14.On issue 3 and ithout determining on whether the Appeal on whether the Appeal has a chance of success, the draft Memorandum of Appeal states that reason for Appeal is that the trial court determined it had no jurisdiction without a valuation report to determine its pecuniary jurisdiction while in the impugned Ruling the learned magistrate found that the plaintiff had not exhausted dispute mechanisms hence declined jurisdiction thereof. It follows that the grounds of Appeal do not flow from the Ruling. In this regard the chances of the Appeal succeeding are underwhelming. 15.On prejudice, the Respondent has submitted that it will suffer prejudice if the Application is allowed as it will be denied enjoyment of fruits of the judgment and the court finds that no prejudice will be suffered by the Respondent other than delay in realizing the judgment. 16.Thus, the court in view of the above exercises its discretion and extends time for the Applicant to file an appeal, for the court to determine its merits. 17.On the second prayer for stay of execution, the court agrees with the Respondent that a dismissal is a negative order, hence there is nothing to stay. 18.On what reliefs ought to issue. the court allows prayer 2 of the application in terms that(i)Leave is granted to the Applicant to file and serve an appeal out of time.(ii)The Draft Memo of Appeal is deemed as duly filed upon payment of court fees.(iii)Proceedings to be typed within 45 days from today. Applicant to thereafter file the Record of Appeal within 30 days once the proceedings have been typed and certified.(iv)The prayer for stay of execution of any consequential orders is hereby denied and is dismissed.(v)Costs of the application to abide by the outcome of the Appeal. DATED AT KILGORIS THIS 29TH DAY OF JULY, 2026HON. M.N MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMr. Paul Lemiso Kiboi (prose litigant)Mr. Maito for Respondent