https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4474

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELC MISC. APPL. NO. E025 OF 2025** **ROBERT MWANIKI GACHOKI ………………………………… APPLICANT** **VERSUS** **FAITH FIDES KARUANA KAREITHI ………………………… RESPONDENT** **RULING** ***[Notice of Motion Dated 29th September 2025]*** 1. Before the Court is the Notice of Motion dated 29th September 2025, in which the applicant seeks principally for leave to appeal out of time against the judgment delivered by **Hon. David M. Ireri (PM)** on **26th July 2024** in **Baricho MCELC No. 10 of 2018**; an order of stay of execution of the said judgment and decree pending the intended appeal, and an order deeming the annexed Notice and Memorandum of Appeal as duly filed and served. The application is predicated on the ten (10) grounds on its face marked (a) to (j) respectively, and supported by the affidavit of Robert Mwaniki Gachoki, applicant, sworn on 29th September 2025. 1. The applicant depones inter alia that he was dissatisfied with the judgment delivered against him, but was unable to lodge an appeal within the prescribed time owing to severe financial constraints. He explains that he is a farmer with no formal employment and depends entirely on farming to support his family. According to him, shortly after the delivery of judgment, his financial resources were committed to meeting his family's basic needs, including paying college fees for his daughter, who had been admitted to the Kenya Medical Training College to pursue a nursing course in Meru, as well as educating his other children. He avers that these obligations left him without the means to initiate the appellate process. 2. He further attributes the delay to family disagreements arising from the suit property, which he describes as family land belonging to his brother, Jesse Maringa. He states that the litigation generated hostility among his siblings, who accused him of attempting to dispose of family land, making it difficult for him to obtain financial assistance to pursue an appeal. It was only after the elders intervened and a family meeting was convened that the dispute was reconciled, following which his elder brother agreed to finance the intended appeal. 3. The applicant further states that the respondent has since embarked on the execution of the decree and recently obtained a Notice to Show Cause why he should not be committed to civil jail. He contends that unless execution is stayed and leave granted to appeal out of time, he stands to suffer substantial prejudice by being compelled to satisfy a decree founded on monies which he maintains he never received. He deposes that he remains aggrieved by the findings of the trial court, particularly on the alleged sale agreements, and the sums found to have been paid to him, and has since instructed counsel to lodge an appeal. Upon being advised that the statutory period for filing an appeal had lapsed, he moved this Court for enlargement of time. He maintains that the delay is neither inordinate nor inexcusable and that the respondent will suffer no prejudice incapable of compensation if the application is allowed. 1. The application is opposed by Faith Fides Karuana Kareithi, respondent, through her replying affidavit sworn on 10th November 2025. The respondent contends inter alia that the application is devoid of merit and has been brought solely to forestall the hearing of a Notice to Show Cause issued in execution proceedings. She avers that following the delivery of judgment, several post-judgment proceedings, including taxation of the bill of costs and execution proceedings, were undertaken, throughout which the applicant was represented by the same advocate. That at no point during those proceedings did the applicant express any intention to appeal or indicate that he lacked the financial means to do so. In her view, the explanation now advanced is an afterthought prompted only by the imminent execution of the decree. 1. The respondent further deposes that the applicant has not approached the Court with clean hands, pointing out that when the Notice to Show Cause came up for hearing, he sought an adjournment to make payment proposals, but subsequently relied on interim stay orders obtained from this Court. She therefore urges the Court to decline the prayer for stay, and should the Court be inclined to grant the stay order, the applicant be ordered to deposit the decretal sum of **Kshs.4,400,000/=** as security. 2. The respondent also opposes the prayer for extension of time contending that the delay of approximately sixteen months from the date of judgment has not been satisfactorily explained. She disputes the applicant's reliance on financial hardship, maintaining that lack of funds has never constituted sufficient ground for enlargement of time. She further avers that the intended appeal lacks merit since the trial court merely ordered a refund of monies paid pursuant to the parties' sale agreement. 1. Additionally, the respondent asserts that the application has in reality been instigated by the applicant's brother, Jesse Maringa, who caused the suit property to be transferred to himself during the pendency of the suit, contrary to the doctrine of *lis pendens,* and unsuccessfully sought to be joined in the proceedings before judgment was delivered. She therefore contends that the intended appeal is merely another attempt to frustrate the realization of the judgment and to deny her the fruits thereof. She urges the Court to dismiss the application with costs. 2. The learned counsel for the respondent and applicant filed written submissions dated 17th December 2025 and 27th February 2026 respectively, which the court has considered. 3. The issues arising for the court’s determinations in the application are as follows: 1. *Whether the applicant has established sufficient cause to warrant extension of time to lodge an appeal against the judgment delivered on 26th July 2024.* 2. *Whether the applicant has satisfied the conditions for grant of stay of execution pending the intended appeal.* 3. *Who pays the costs?* 4. The court has after carefully considering the grounds on the application, affidavit evidence, submissions by the learned counsel, superior court decisions cited, come to the following determinations: 1. The applicant seeks for inter alia leave to appeal out of time. **Section 79G of the Civil Procedure Act**, provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal within the prescribed period. The principles governing the exercise of the court's discretion under the proviso to **Section 79G** are now well settled. In the case of ***Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 Others* *[2014] eKLR,*** the Supreme Court observed that extension of time is not a right but an equitable remedy available only to a deserving party. The Court identified the following as among the relevant factors to be considered: * + 1. *The length of the delay;* 2. *The reason for the delay;* 3. *Whether the application has been brought without undue delay;* 4. *The prejudice likely to be occasioned to the respondent; and,* 5. *Where appropriate, whether the intended appeal is arguable.* Similar considerations have been reiterated by the Court of Appeal in the case of ***Paul Musili Wambua versus Attorney General & 2 Others* [2015] eKLR.** * 1. The judgment sought to be appealed against was delivered on 26th July 2024. The present application was not filed until 29th September 2025. There is therefore no dispute that the statutory period prescribed under **Section 79G** had long lapsed by the time the application was filed. The major question for determination is whether the applicant has furnished a satisfactory explanation for that delay. The applicant attributes the delay principally to some financial hardships and commitments. He stated that he is a farmer of modest means with no formal employment, and that immediately after the judgment, his financial resources were consumed by the obligation to educate his children, including meeting college fees for one of his daughters, educating other children, while at the same time providing for his family's daily needs. * 1. Counsel further submitted that the applicant's financial constraints were compounded by the numerous post-judgment applications filed by the respondent, which continued to require legal representation and expenditure. It was also submitted that the litigation generated family discord, with the applicant's siblings believing that he intended to dispose of family land, thereby denying him the financial support he required to pursue an appeal, until after the intervention of family elders, that eventually restored harmony and enabled his elder brother to finance the intended appeal. Counsel therefore urged the court to find that the delay, though lengthy, had been satisfactorily explained. * 1. The respondent takes a contrary view, submitting inter alia that the delay of approximately sixteen months is plainly inordinate and wholly unexplained. According to her, the applicant remained represented by the same advocate throughout the post-judgment proceedings, including taxation of costs and execution proceedings, yet at no time did he express dissatisfaction with the judgment or indicate an intention to challenge it on appeal. Counsel argues that the explanation founded on financial hardship is an afterthought, only advanced after execution had reached the stage of a Notice to Show Cause. It was further submitted that inability to raise legal fees is not, without more, sufficient cause for extension of time and that the application is merely intended to delay execution and deny the respondent the fruits of her judgment. * 1. The respondent additionally contends that the intended appeal lacks merit, maintaining that the trial court merely ordered the applicant to refund monies received pursuant to the parties' sale agreement and that the application is in reality being driven by the applicant's brother, Jesse Maringa, whose previous attempt to participate in the lower court proceedings was unsuccessful. 2. These rival arguments call for an examination of whether the explanation offered by the applicant satisfies the threshold of *"good and sufficient cause"* contemplated under **Section 79G of the Civil Procedure Act**. The discretion conferred upon the court by **Section 79G** is undoubtedly wide. However, like all judicial discretion, it must be exercised judiciously and upon sound reason. The applicant bears the burden of demonstrating that the delay was occasioned by circumstances which constitute *"good and sufficient cause"* and that such delay is excusable in the circumstances of the case. 3. There is no dispute that the present application was filed approximately fourteen months after delivery of judgment and well outside the statutory period prescribed under **Section 79G of the Civil Procedure Act**. Such a delay cannot, by any measure, be described as short. The court must therefore closely interrogate the explanation advanced. The principal explanation offered by the applicant is financial incapacity. He deposes that he lacked the means to instruct counsel owing to his obligations as the sole breadwinner of his family, the education expenses of his children, and the harsh economic conditions affecting him as a farmer. He further attributes the delay to family disagreements arising from the ownership of the suit property, contending that his siblings declined to assist him financially until elders intervened and his elder brother eventually agreed to finance the intended appeal. 4. Financial hardship is undoubtedly a reality that courts cannot ignore. Equally, every case must be considered on its own peculiar circumstances. The court therefore does not accept the respondent's submission that financial constraints can never constitute a basis for extension of time. Depending on the facts of a particular case, genuine inability to raise legal fees may well explain a delay in instituting appellate proceedings. The difficulty in the present application, however, lies not in the nature of the explanation but in whether it satisfactorily accounts for the entire period of delay. 5. The respondent has pointed out, and the applicant does not dispute, that following delivery of judgment, there were several post-judgment proceedings before the trial court, including taxation of costs, execution proceedings and ultimately proceedings by way of Notice to Show Cause. That throughout those proceedings, the applicant remained represented by the same advocate, and that at no point during that period, did he place before the trial court or this court any indication that he intended to challenge the judgment on appeal, or that financial inability had prevented him from doing so. Although the applicant explains that the respondent continued filing applications, which strained his financial resources, that explanation does not sufficiently address why no steps whatsoever were taken towards instituting an appeal for over a year after judgment. * 1. The respondent further submitted that the present application was only precipitated by the execution process, particularly the Notice to Show Cause. There is indeed no dispute that execution had substantially progressed before the applicant moved this court. While the mere commencement of execution does not disentitle a judgment debtor from seeking extension of time, it is nevertheless a relevant circumstance in assessing whether the application was brought promptly upon the applicant becoming able to appeal, or whether it was triggered by the imminent consequences of execution. 2. The applicant has also urged the court to consider that his intended appeal is arguable, contending that the trial court rewrote the parties' agreement, and improperly awarded interest at the rate of 30% per annum from the date of the agreement, until payment in full. The respondent, on the other hand, maintains that the intended appeal is devoid of merit as the trial court merely ordered refund of monies received under the parties' sale agreement. 3. At this stage, it is neither necessary nor appropriate for the court to make definitive pronouncements on the merits of the intended appeal. The court is only required to satisfy itself that the proposed appeal is not frivolous. In my view, the draft memorandum of appeal raises questions regarding the trial court's appreciation of the evidence and the remedies granted. Without expressing any concluded opinion on those issues, I am satisfied that the intended appeal is not plainly frivolous. 4. However, the existence of an arguable appeal, standing alone, cannot cure an unexplained or inadequately explained delay. The authorities cited by both parties are consistent that the court must consider all relevant factors holistically. An applicant who demonstrates an arguable appeal must nevertheless satisfy the court that there exists good and sufficient cause for failing to comply with the statutory timelines. In the present case, having weighed the competing considerations, I am not persuaded that the explanations advanced by the applicant sufficiently account for the prolonged delay between the delivery of judgment on 26th July 2024 and the filing of the present application on 29th September 2025. * 1. While the court appreciates that financial and personal challenges alluded to by the applicant, those circumstances, viewed against the undisputed chronology of his continued participation in post-judgment proceedings through counsel, without any demonstrated effort to initiate an appeal during that period, fall short of establishing the good and sufficient cause contemplated under **Section 79G of the Civil Procedure Act.** Accordingly, I find that the prayer for leave to appeal out of time is not merited. 2. The applicant also seeks an order of stay of execution pending the hearing and determination of the intended appeal. Counsel submits that unless a stay is granted, execution of the decree will occasion substantial loss and render the intended appeal nugatory. It was argued that the applicant disputes both the amount allegedly received from the respondent and the trial court's award, and that the interests of justice require preservation of the status quo pending appeal. * 1. The respondent opposes the prayer, submitting that she has been kept away from the fruits of her judgment for an inordinately long period and that the application is merely another attempt to delay execution. In the alternative, she urges the court that, should it be inclined to grant a stay, the applicant ought to be ordered to deposit the entire decretal sum as security for the due performance of the decree. I have considered the rival arguments. 2. The jurisdiction of this court to grant a stay of execution pending appeal is donated by **Order 42 Rule 6 of the Civil Procedure Rules**. Ordinarily, an applicant must demonstrate that substantial loss may result unless a stay is granted; that the application has been made without unreasonable delay; and that security for the due performance of the decree has been furnished. In the present application however, the prayer for stay is predicated upon the intended appeal for which leave to appeal out of time has been sought. Having found that the applicant has not established sufficient cause to warrant enlargement of time under **Section 79G of the Civil Procedure Act**, there exists no competent appeal capable of being preserved by an order of stay. The foundation upon which the prayer for stay rests having dissipated, the prayer for stay therefore falls away. It follows therefore, that the temporary stay of execution order issued on 1st October 2025 is now spent. * 1. It follows that the prayer seeking that the annexed Notice of Appeal and Memorandum of Appeal be deemed as duly filed and served is equally untenable in view of the above findings. In the absence of leave to appeal out of time, this court cannot validate pleadings that were filed outside the statutory period. To do so would be to circumvent the mandatory requirements of **Section 79G of the Civil Procedure Act** and in effect, grant indirectly what the court has declined to grant directly. 2. Under **Section 27 of Civil Procedure Act chapter 21 of Laws of Kenya**, costs follow the events unless where ordered otherwise by the court on good grounds. I find no reasons to deviate from that edict and the respondent is granted costs. 1. In view of the foregoing determinations, the court finds and orders as follows: 1. **That the application dated 29th September 2025 is devoid of merit and is dismissed.** 2. **That the applicant to pay the respondent’s costs.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 15TH DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** In the presence of: Applicant –M/s Mokaya Respondent – Mr. Mutegi for Ann Thungu Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**