https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3769

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC MISC E006 OF 2026** **PAULINE ODHIAMBO AMUKA …………………………..……………..APPLICANT** **VERSUS** **JACOB AMUKA MEMBA …………………………………………..1ST RESPONDENT.** **ODERA OBAR KENNEDY …………………………………………..2ND RESPONDENT.** **THE LAND REGISTRAR HOMABAY LANDS OFFICE ………...3RD RESPONDENT.** **THE HONOURABLE ATTORNEY GENERAL …………………..4TH RESPONDENT.** **RULING** 1. The applicant herein has filed an application dated 13th February 2026 under Certificate of urgent seeking for the following Orders: 1. Spent. 2. The Honorable Court be pleased to extend time for filing an appeal and admit the Memorandum of Appeal out of time against the judgment and decree entered against applicant by Hon. Christine Kemunto Auka (P.M) in Homa bay Chief Magistrates’ Court Land Case No 6 of 2020 delivered on 16th day of October, 2025. 3. Costs of this application do abide the outcome of the intended appeal. 1. The application is premised on Six (6) grounds on the face of the application namely; 2. Judgment was delivered on 16th day of October, 2025 and the statutory time for lodging a Memorandum of Appeal has expired. 3. The appellant timely lodged an appeal being number E035 of 2025 but due to an omission to include the name of Jacob Amuka Memba as a party in the said appeal the same has been wholly withdrawn. 4. The delay in lodging the appeal has been occasioned by technicality in the already withdrawn appeal. 5. The intended appeal is arguable with high chances of success. 6. This application has been time made without unnecessary delay. 7. No prejudice shall be suffered by the respondent in allowing this application. 8. The application is supported by the Affidavit of Paul Odhiambo Amuka sworn on 13th February, 2026. 9. He states that judgment was delivered on 16th day of October, 2025 judgment was delivered in Land case number 6 of 2020 against the applicant on 27th October, 2025 but lodged an appeal against the decision without obtaining Consent of his Advocate; that on 13th February, 2026 he withdrew the appeal, that at the time of withdrawing and making a decision to lodge a fresh appeal time had run out, and, he has an arguable appeal. 10. He has attached a decree, memo of appeal and notice of withdrawal. **RESPONSE TO APPLICATION.** 1. Jacob Amuka Memba, 1st Respondent swore a replying affidavit on 20th February, 2026 stating that he is not opposed to the application. 2. The 2nd Respondent acting through Odera Ober & Co Advocates swore two replying affidavits on 23rd February, 2026 and 26th February 2026 respectively. 3. The Attorney General through the Land Registrar also filed a replying affidavit opposing the application. 4. On 25th February 2026 and 12th March 2026 directions were taken and court gave timelines for filing Submissions. On the 2nd mention date, the Court gave a date for ruling date. **SUBMISSIONS.** 1. The Applicant filed written Submissions on 17th March 2026. Where he states that the Court has discretion to enlarge time which must be exercised judicially. He relies on the decision of **Nicholas Kiptoo Arap Korir Salat V Electoral and Boundaries Commission & 7 others (2014) eKLR** **Belinda Murai & Others V Amos Waichane (1979) eKLR, Philip Chemwolo & Another V Augustine Kubende (1982-88), Mwangi V Kenya Airways Ltd (2001) eKLR**, **Stanley Kangethe Kinyanjui V Tony Keter & Others (2013) eKLR and Butt V Rent Restriction Tribunal (1982) KLR 417** In Summary, he says he has demonstrated that; - He filed an appeal within the time initially. - The delay arose from procedural errors. - The errors were not deliberate. - The intended appeal is arguable. - The respondents will not suffer prejudice. **2ND RESPONDENT’S SUBMISSION.** 11. The 2nd Respondents filed their Submissions dated 19th March 2026. The starting point for the 2nd Respondent is that the Application fails on two fronts. Firstly, it is incompetent for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, and Secondly, it is an attempt to re-cast the dispute on new issues after Judgment, which is not what section 79 G meant to facilitate. 12. On that score the 2nd Respondent relies on the decision of **Nicholas Kiptoo Arap Korir Salat versus IEBC & 7 Others S.K Tarwadi Versus Veronica Muehlmann,** and lastly **IEBC versus IEBC versus Stephen Mutinda Mule and Galaxy Paints Company Limited and Falcon Guards Limited.** 13. The 2nd Respondent Submits that granting the application would undermine the discipline of statutory time lines under section 79 G and Post Judgment safeguard under Order 9 rule 9. **ISSUES FOR DETERMINATION** 14. (a) Circumstances under which the Court may grant leave. (b) Whether the Application is merited **Circumstances under which the Court may grant leave.** 15. This court has a discretion to grant leave to a deserving party to file an appeal out of time. 16. Ordinarily every appeal from a Subordinate Court to the High court must be filed within thirty days from the date of the decree or order. 17. In the case of **Nicholas Kiptoo Salat versus IEBC & 7 others (2014) eKLR** which has been referred to in submissions filed herein in the Supreme Court set out the principles to be considered in determining an application for extension of time as follows; 1. 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. 2. A party who seeks for extension of time has the burden of laying a basis for the satisfaction of the Court. 3. Whether the Court should exercise the discretion to extend time, is a Consideration to be made from case-to-case basis. 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court. 5. Whether there will any prejudice suffered by the respondents, if the extension is granted. 6. Whether the application has been brought without undue delay, and 7. Whether in certain cases like election petitions, public interest should be a Consideration for extending time 18. Section 79 G of the Civil Procedure Act stipulated that before the Court considers extension of time, an applicant must satisfy the Court that he has a good and sufficient cause for filing an appeal out of time. 19. The above Principle was reiterated in the **case of Diplack Kenya Limited versus William Muthama Kitonyi (2018) eKLR** where the Court aptly stated that an applicant seeking enlargement of time to file an appeal on or admission of an already filed appeal MUST demonstrate that he has a good cause for so doing. 20. In the Court of Appeal decision of **Andrew Kiplagat Chemaringo versus Paul Kipkorir Kibet (2018) eKLR** the Court held; *“The Law does not set out any minimum maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is Key that unlocks the Courts flow of discretionary favour, If there has to valid and clear reasons upon which discretion can be favourably exercised”.* (b) **Whether the Application is merited.** 21. I have carefully considered the Applicant’s application dated 13th February, 2026, the replying affidavits, filed, Submissions and authorities referred to in the support of the application. 22. The Applicant confirms that he instituted the 1st Appeal before lapse of the statutory period. 23. He then took a nap for a period then came back to withdraw the Appeal. 24. That, notwithstanding, the Appeal was a candidate for striking out as it had been filed contrary to the provisions of Order 9 Rule 9. 25. He then regulated the violation by securing consent from his new Advocate allowing him to proceed in person, and that when he withdrew the Appeal but still moved to file a new Appeal. 26. What is interesting though, is that the Applicant admits overlooking his Counsel yet has not Come to explain the reasons why he opted to do so. 27. He confirms that he is a disciplined officer and a learned man who understands the Consequences of failing to abide by the Law. 28. He has also not given an explanation as to why it took long to get consent from Counsel before moving ahead. 29. The 3rd Respondent has Strongly and vigorously opposed the application. He faults the applicant for failing to Comply with the law. 30. He also states that the applicant has failed to demonstrate good cause and sufficient Cause. 31. However, Counsel had a greater responsibility of taking steps to move the Court for purposes of Striking out the appeal upon service of the memorandum. He never took any positive step in that direction. 32. The Applicant made a step of withdrawing and filing the Appeal Suo Moto without prodding from any quarter. 33. I will excuse the blunder made by the applicant in opting to file the appeal in person and omitting a crucial party thereto hence rendering the same incompetent. 34. Even without disclosing the delay, as earlier stated, the Applicant has disclosed in the Certificate of Urgency that he is occasionally deployed out of the County and being a person who is always on duty that could be the reason as to why it took long to regularize the record. 35. It is not uncommon in our jurisdiction for that blunders are committed by legal representatives of parties and Courts have been accommodative **(see *Belinda Murai & 9 others v Amos Wainaina (1982) KLR 38)*** 36.Similarly, Apaloo JA as he then was in the Case of **Philip Chemwolo & Another V Augustine Kubende (1982) KAR 1036 at 1040** Observed that: *“Blunders will continue to be made from time to time and does not follow that because a mistake has been made that a party should suffer the penalty of having his case, I think the broad equity approach to this matter is that unless there is fraud, or intention to overreach there is no error or right that cannot be put right by costs. The court as is often said exists for purposes of determining the rights of the parties, not the purpose of imposing discipline*”. 37.I note that the other omission is that the Applicant has not attached a copy of typed proceedings to enable the Court determine the nature of his interest in the suit land. 38. The saving grace is that after withdrawal the applicant did file another appeal the very day, hence there was no delay or indolence displayed on his part. 39. So, the Principle of the Environment and Land Court Act and specifically Section 3 (1) is to enable the Court to facilitate the expeditious and proportionate and accessible resolution of disputes and in discharge of its functions that Court shall give effect to the principal objective. 40. What is in Contention is land and it should be appreciated that land matters are emotive. 41. I will therefore exercise my discretion by allowing the application but subject to certain Conditions. 42. I make the following Orders: 1. The applicant is hereby granted leave to out file his Appeal out of time. 2. The memorandum of appeal befiled and served within Three (3) days from today. 3. The record of appeal be prepared, filed and served within Seven (7) days from today. 4. The Applicant to pay to the 2nd Respondent throw away costs of Ksh. 20000/ payable within 14 days. 5. This file marked as closed. RULING, DATED AND DELIVERED VIRTUAULLY ON 12TH JUNE 2026. **In the presence of;** 1. Amuka Paul present in Person. 2. Muthoni holding brief for Odera for the 2nd Respondent. 3. Jacob Amuka, present. 4. Court Assistant, Mercy Awino. JUSTICE JOHN WALTER WANYONYI- JUDGE