https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2949

Loyor v Lomer (Environment and Land Miscellaneous Case E002 of 2026) [2026] KEELC 2949 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 2949 (KLR) Republic of Kenya In the Environment and Land Court at Lodwar Environment and Land Miscellaneous Case E002 of 2026 CK Nzili, J May 15, 2026 Between Rhoda Arupe Loyor Applicant and Peter Moe Lomer Respondent Ruling 1.The court, by an application dated 7/4/2026, is asked to grant the applicant leave to file and serve an appeal out of time against the judgment of the lower court delivered on 29/10/2025. The reasons are contained on the face of the application and in a supporting affidavit sworn by Rhoda Arupe Loyor on 7/4/2026. 2.It is deposed that the applicant had been sued in her personal capacity at the lower court, after which she filed a defence and counterclaim, which was dismissed for lack of capacity to represent the estate of her deceased husband. 3.The applicant deposes that the estate, on realizing that the decision touched on its interest, specifically the proprietary right to own the land, she was fronted to represent the estate’s interest, after which she filed an application, which unfortunately was dismissed on 16/2/2026, which she has also instructed her lawyers to appeal against. 4.The applicant deposes that the respondent has moved into the suit property had started construction of a perimeter fence around it. The applicant deposes that she has serious concerns and triable issues to be canvassed, which, in her opinion, the trial court did not address; leave is sought to appeal. The applicant deposes that she has demonstrated that there has been no inordinate delay. 5.The applicant deposes that this application should be fast-tracked to arrest the intended implementation of the resultant judgment and orders of the impugned decision; otherwise, the appeal shall be rendered moot or a mere academic exercise. 6.The applicant deposes that she has demonstrated that it is in the interest of justice that the court’s discretion be exercised in her favour, for justice not only to be done but be seen to have been done. 7.The application is opposed on the grounds of opposition dated 28/4/2026. It is stated that the application has been filed for close to 8 months, the decree of the lower court has been executed, the applicant chose the review route, which, after its refusal, an appeal has been preferred, the court has no powers to grant the orders sought, it is a fishing expedition, and the application lacks merit. 8.Section 79 G of the Civil Procedure Act provides that a court may admit the filing of an appeal out of time, where there are sufficient reasons. Extension of time is therefore not a matter of right of a party, but an equitable remedy only available to a deserving party at the discretion of the court. 9.The applicant bears the burden of demonstrating to the satisfaction of the court the cause of the delay. In Daniel Kimani Njihia -vs- Francis Mwangi Kimani & Another [2015] eKLR, the court held that the discretion is exercisable only based on the express provisions of the Constitution and the law. 10.The guiding principles were set out in the Arvind Shah & 7 Others -vs- Mombasa Bricks and Tiles Ltd & 5 Others SC Petition No. 18 (E020), Karinga Gaciani & Others -vs- Ndege Kabibi Kimanga & Another SC Appl. No. E004 of 2024 and Kenya Agricultural Research Institute -vs- Peter Wambugu Kariuki & Others SC Appl. No. E001 of 2023 [2023] KESC 25, and Alex Njue Kithangari & Others -vs- Benson Gichohi Mutali SC Appl. No E024 of 2024, where the court said: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 that seeks an 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-by-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 be any prejudice suffered by the respondent if the extension is granted.(6)Whether the application has been brought within undue delay and,(7)Whether, in certain cases like election petitions, public interest should be a consideration for extending time. 11.The applicant says that there is no inordinate delay in bringing the application, and the reason is that she had filed another application, which the trial court dismissed in February 2026. The respondent, on the other hand, terms the application as filed after an inordinate delay, with no sufficient reasons given. Inordinate delay was discussed in Muya -vs- Tribunal to Investigate the conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya, Petition No 4 of 2022 [2022] KESC 16 [KLR]. 12.The court held that in determining whether there is an inordinate delay, the focus should not be on the length of the delay per se, but also on the justification and reasons, which in turn must be rational and plausible. 13.In Karani -vs- Judicial Service Commission Petition No. 3 of 2021 [2024] KESC 37 [KLR], the court held that where there is a delay, the court must interrogate whether the same is justifiable and thus excusable, or not, by looking at the circumstances of the case. 14.In Gaciani & Others -vs- Kibibi (supra), the court said that whereas a mistake of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence of efforts and due diligence to pursue their rights. 15.In George Kang'ethe Waruhiu -vs- Esther Nyamweru Munene & Another Civil Appl. No. 18 of 2020 [2021] eKLR, the court said that it is not enough for a party to simply blame their advocate on all manner of transgression, for a party has also a responsibility to show interest in and follow up on their case even when they are represented by counsel, and that it does not matter whether a party is literate or not. 16.The judgment of the lower court was delivered on 29/10/2025. The application for review was filed on 27/11/2025, and a ruling was delivered on 16/2/2026. This application was filed on 7/4/2026. This is after a period of 6 months. So the application for review was also filed after the period for appeal had almost elapsed. 17.The applicant has not stated when she became seized of letters of administration to represent the estate and why, after obtaining them, she did not see it fit to file an appeal, or if the period of appeal had expired, why opt for review and not the appeal route. 18.Though the law does not define what maximum or minimum delay is, it all depends on the circumstances of each case. A delay of six months by all standards is inordinate, especially where the decree of the lower court has been executed, and the respondent has moved on to the site and started construction of a fence. 19.It is therefore upon the applicant to satisfy the court why wait until after 6 months to move the court on an application for leave to appeal out of time, when at the same time there is a pending appeal after the refusal of the review route. 20.When a party opts to pursue an appeal, he is precluded from resorting to the review route or vice versa, as held in Anthony Gachara Ayub -vs- Francis Mahinda Thinwa [2014] eKLR. The applicant cannot have it both ways. Already, there is a pending appeal before this court and an application for a stay of execution based on the same issues. 21.Abuse of the court is where a party is using the court process for ulterior motives or is out to vex the other party. I think the applicant fits both. Ignorance of the law is no defence. The applicant was ably represented by counsel at the hearing and after the lower court judgment. From the material before the court, the applicant had no capacity to represent the estate at the lower court. Those facts were known to her as held by the trial court. 22.In law, the applicant is therefore estopped from denying the existence of those facts. She cannot turn around to deny or say that it was only after losing the previous suit that she was instructed by the estate of her late husband to go back on appeal once clothed with letters of administration. 23.The applicant and her counsel on record during the lower court trial knew or ought to have known what the counterclaim was all about, and that she was advancing it without the requisite capacity, and therefore acting in vain. It cannot be true that the applicant’s intended appeal has serious issues for trial, to be determined by this court. Those alleged issues were perhaps there, but the party advancing them had no standing. 24.The upshot is that I find the application lacking merit. It is dismissed with costs. 25.Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 15TH DAY OF MAY 2026.HON. C.K. NZILIJUDGE, ELC KITALE.In the presence of:Court Assistant - DennisKibet for the respondent presentAhenda for the plaintiff present