Macharia v Kahora (Environment and Land Miscellaneous Application E031 of 2024) [2026] KEELC 4617 (KLR) (2 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC MISC APPLICATION CASE NO.E031 OF 2024** **PETER GITHAIGA MACHARIA……………………………… APPLICANT** **-VS-** **PETER KIMANI KAHORA…………………………………...RESPONDENT** **RULING** 1. The Applicant herein filed an application under Notice of Motion dated 20th November 2024, seeking an order that leave be granted to him to file an appeal against the judgment of the Magistrates' Court, Karatina, delivered on 12th November 2021 in **Karatina P.M.E.L.C. No. 7 of 2020**. 2. The Application is supported by the Applicant's affidavit, in which he deposed that he had filed the primary suit against the Respondent herein on 6th July 2020, and the Respondent filed a counterclaim. The suit was heard, and a judgment was delivered on 12th November 2021. 3. It is deposed that, as appears from the judgment, the judgment was delivered online in his absence. The Applicant states that he learned of the judgment only when the respondent began interfering with the suit land by constructing thereon, as shown in the photographs annexed to his affidavit, in June 2024. 4. When he inquired of his former advocates, they informed him that they had also been waiting for the said judgment, which he obtained only after July 2, 2024, as per the court receipt annexed to his affidavit. 5. Only after this realization did he obtain copies of the judgment showing that his suit had been dismissed and that the counterclaim had been allowed. He immediately instructed his current advocates on record to file an appeal and was advised that the time to do so had long lapsed. 6. The Applicant’s case is that the delay in preferring the intended appeal was caused by the said mode of delivery of the judgment, which he was not conversant with; otherwise, he would have filed the appeal timeously. 7. He annexed a draft memorandum of appeal. He deposed that the proposed appeal has valid and arguable grounds and that, if the order sought is not granted, he will suffer inextricable loss if the intended appeal is not filed, as the subject is land that has been alienated from him by the subject judgment. **The Respondent’s Replying Affidavit** 1. The Respondent swore an affidavit in response to the substantive application on January 10, 2025, in which he deposed that the application had been brought after an inordinate delay of three (3) years, the judgment in **Karatina PM ELC no. 7 of 2020** having been delivered on November 12, 2021. 2. That throughout the proceedings and the judgment, the Applicant was ably represented by the firm of Messrs. MC Kamwenji & Company Advocates and cannot feign ignorance of the proceedings at any stage. 3. Further, on October 14, 2021, in the presence of both parties' counsel, judgment was postponed to be delivered virtually on November 12, 2021. When it was so delivered, the plaintiffs' case was dismissed, and the defendants' counterclaim was allowed as per the judgment and resultant decree. 4. After the judgment, the Respondent deposed that his advocate filed an application on 8th August 2022 seeking execution of the subdivision documents by the court’s executive officer, and that the application was served on the applicants' advocate on 18th August 2022. The application was heard on 12th September 2022 in the presence of the applicant’s advocate. 5. The decree was fully executed, and L.R. No. Iria-ini/Kiaguthii/1138, measuring 0.06 Ha, was partitioned as per the attached copy of the mutation, resulting in parcels LR Iria-ini/Kiaguthu/1697, measuring 0.03 Ha, in his name and LR No. Iria-ini/Kiaguthu/1698, measuring 0.03 Ha, in the name of the Applicant. 6. By a letter dated April 19, 2023, the Respondent’s advocate wrote to the applicant inviting him to collect his title deed, as per the copy of the letter annexed to his reply affidavit. 7. After subdivision, the Respondent deposed that he fenced the land parcel and that the applicant was fully aware, prompting him to file a report with the officers of the DCI Mathira East, but the report could not be acted upon because it was done pursuant to the execution of a lawful decree issued by a court of competent jurisdiction. 8. That the applicant has not demonstrated any good and sufficient cause for failing to file the appeal in time, noting that even after alleging knowledge of the judgment in June 2024 and obtaining the judgment in July 2024, the applicant, without a sense of urgency, waited until December 2024 to file this application, a further delay of about five (5) months. 9. Further, the Respondent contends that the annexed draft memorandum of Appeal does not present any valid and arguable grounds and that the lower court's finding was a very well-reasoned judgment. 10. It is thus the Respondent’s contention that the application lacks merit and ought to be dismissed with costs. 11. The Applicant filed written submissions, which the Court has duly read and considered. **Analysis and determination** 1. The present application, dated 10th July 2023, seeks leave to file an appeal out of time from the judgment delivered on 12th November 2021 in **Mukurwe-ini MCELC E006 of 2024**. The application is based on, among other provisions, Section 79G of the Civil Procedure Act CAP 21, which provides that: ***“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 to the appellant 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 a good and sufficient cause for not filing the appeal in time.”*** 1. Section 95 of the Civil Procedure Act provides that: ***“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”*** 1. From the foregoing, it is clear that this court has the discretion to extend the time for filing an appeal. The Court of Appeal in the case of **Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231**, the *locus classicus* on extension of time, laid down the following parameters: ***“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this 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; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” This was reiterated by Odek, JJ. A in*** **Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR,** as, ***“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 others...”*** 1. The Supreme Court, in the case of **Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others, Sup Ct. Application 16 of 2014** later established the principles to be applied when exercising the discretionary power to extend time: ***“Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis [for] where they seek [grant of it.…….***The Court further decided that: ***"This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the exercise of such discretion:*** 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 extension of time has the burden of laying a basis, to the satisfaction of the Court;*** 3. ***whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;*** 4. ***where there is [good] reason for the delay, the delay should be explained to the satisfaction of the Court;*** 5. ***whether there will be 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, the public interest should be a consideration for extending time.”*** 8. In the present case, the grounds for requesting an extension of time to file the appeal are that the Applicant was not in attendance at the reading of the judgment and only became aware of it much later, when the Respondent initiated construction on the suit property. 9. I note that from the time the judgment was delivered on November 12, 2021, until the Applicant claims he learned of it in June 2024, is a period of nearly 3 years. For a litigant waiting for the judgment after the hearing concluded, that is an inordinately long time to wait before following up on one’s case. The Applicant blames the Advocate for failing to attend to or follow up on the matter, but the Applicant, as a litigant, also had a duty to follow up on his own case. Okwany J., in the case of **International Air Transport Association & another v Roskar Travel Limited & 3 others (Civil Case E457 of 2020) [2022] KEHC 200 (KLR)**, cited with approval the case of **Neeta Gohil v Fidelity Commercial Bank Limited [2019] eKLR**, where it was held as follows: ***“However, it is not in every case that a mistake committed by an Advocate would be a ground for setting aside orders of the Court. In Savings and Loans Limited v Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, Kimaru, J expressed himself as follows:*** ***"Whereas it would constitute a valid excuse for the Defendant to claim that she had been let down by her former Advocate's failure to attend Court on the date the application was fixed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate's failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour is an indictment on the defendant. She had been indolent and taking into account her last conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant. (emphasis added) I hold similar view that it is not enough for a party to simply blame an advocate for a mistake but the party must show tangible steps taken by him in following up his matter. It is evident from the court record that the application to set aside the interlocutory judgement was brought 5 months after judgement had been given which is in my view an inordinate delay.”*** 1. Having established that the delay was inordinately long and having confirmed that the Respondent's decree and judgment in this matter were issued 3 years before the current application was filed, the application dated 20th November 2024 is without merit and is hereby dismissed with costs. **Dated, signed, and delivered electronically in Nyeri on this 2nd day of July, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Kingori for the Applicant** **Mr. Maina for the Respondent** **Denis: Court Assistant**