https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3786

Wafula v Juma (Environment and Land Miscellaneous Application E005 of 2025) [2026] KEELC 3786 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3786 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Environment and Land Miscellaneous Application E005 of 2025 AK Bor, J June 16, 2026 Between Rodgers Juma Wafula Applicant and Clare Nelima Juma Respondent Ruling 1.The Applicant filed the application dated 12/2/2026 seeking leave to file an appeal against the decision made in Kimilili SPM ELC No. E003 of 2020 on 18/12/2024 out of time. He also sought stay of execution of the decree emanating from that decision pending hearing and determination of the intended appeal. 2.The application was made on the grounds that the intended appeal had high chances of success and that the Applicant’s title could be cancelled at any time which would cause him to suffer irreparable harm. The Applicant swore the affidavit in support of the application. He maintained that he was not served with the plaint and that he only learnt of the suit when his brother brought him a copy of the decree. He filed an application seeking to set aside the ex parte judgment but the court dismissed that application. His advocate declined to represent him and he got help from a human rights activist in drafting the application dated 17/1/2025. When he appointed a new advocate, he was advised that the application was defective and required some corrections. He averred that if the application was not allowed, he would suffer irreparable harm and that if stay was not granted, he would suffer harm beyond measure. He exhibited a draft of memorandum of appeal together with a copy of the ruling, which he seeks to challenge. 3.The Respondent filed grounds of opposition and urged that the application was frivolous, vexatious, an afterthought and an abuse of the court process. Further, that it was premised on misrepresentation of facts and did not meet the criteria set by case law. 4.The application was canvassed through written submission. The Applicant submitted that the trial court dismissed his application to set aside the ex parte judgment vide the ruling dated 18/12/2024 and that he filed the application dated 17/1/2024 seeking leave to appeal out of time yet the statutory period for lodging an appeal had not lapsed by then. He withdrew the application dated 17/1/2024 because it had some deficiencies. He maintained that he had explained the reasons for the delay in the supporting affidavit, which according to him were convincing. He urged that he deserved the orders sought and added that the Respondent did not file a replying affidavit to controvert the facts set out in his supporting affidavit. 5.The Respondent submitted that extension of time was an equitable remedy available to a party who demonstrated sufficient reasons for the delay, that the delay was not inordinate, the application was brought in good faith and that the Respondent would not suffer prejudice. The Respondent argued that the delay in this matter was inordinate and unexplained while pointing out that the impugned ruling was delivered on 18/12/2024. Further, that no sufficient explanation was offered for the failure to act in time. The Respondent urged that the Applicant had demonstrated a pattern of indolence and lack of diligence and seriousness in prosecuting the matter. She emphasized that the application was an afterthought and an attempt to reopen litigation that was already concluded. 6.Regarding the prayer for execution, the Respondent submitted that the Applicant had not demonstrated any substantial loss and that mere allegations were not sufficient. She contended that there had been inordinate delay which was not explained and that no security for the due performance of the decree had been offered by the Applicant. The Respondent argued that the intended appeal was not arguable and that as the successful litigant, she was entitled to enjoy the fruits of the judgment and would be prejudiced if the orders sought were granted. She urged that the Applicant persistently filed applications which he did not prosecute. 7.The issue for determination is whether the court should grant the Applicant leave to appeal out of time and whether there should be stay of execution of the decree issued by the trial court. The court notes that the Applicant had filed an application dated 17/1/2025 seeking leave to appeal out of time against the decision made by the trial court on 18/12/2024. That application was withdrawn vide the notice dated 14/2/2026. The present application seeks the leave of this court to appeal against the ruling of the Learned Magistrate, which dismissed the Applicants application for the setting aside of the judgment entered against the Applicant. 8.court is inclined to grant the Applicant leave based on the explanation given that at the time he filed the application dated 17/1/2025, he was not represented by counsel and only instructed counsel later. The court also notes that the Applicant made an application dated 22/8/2025 seeking reinstatement of what he terms the suit dismissed for want of prosecution. There is a demonstration of effort by the Appellant towards pursuing the appeal against the decision of the trial court, this was demonstrated even when he acted in person. 9.Regarding the application for stay of execution, the Applicant has not satisfied the requirements for the grant of stay of execution. He merely stated that he would suffer loss and harm without giving particulars of the nature of the substantial loss that he stood to suffer if stay is not granted. 10.The Applicant is granted leave to appeal against the decision of the Learned Magistrate given on 18/12/2024 in Kimilili SPM ELC Case No. E003 of 2020. The appeal is to be filed and served within 14 days of the date of this ruling. The court declines to grant orders to stay execution of the decision of the Learned Magistrate given on 18/12/2024 in Kimilili SPM ELC Case No. E003 of 2020 pending hearing and determination of the intended appeal. 11.The Respondent is awarded the costs of the miscellaneous application. DELIVERED VIRTUALLY AT BUNGOMA THIS 16TH DAY OF JUNE 2026.K. BORJUDGEIn the presence of: -Mr. Robert Wamalwa for the ApplicantCourt Assistants- Bett/MetrineNo appearance for the Respondent