https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4287

Simiyu & another v Charamba & another (Environment and Land Miscellaneous Application E006 of 2026) [2026] KEELC 4287 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 4287 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Miscellaneous Application E006 of 2026 AK Bor, J June 29, 2026 Between Moses Wangila Simiyu 1st Applicant Peter Masibo Matayo 2nd Applicant and Patrick Wafula Charamba 1st Respondent Dominic Oscar Wanyonyi 2nd Respondent Ruling 1.Through the application dated 28/4/2026, the Applicants sought leave to appeal out of time against the ruling and order made on 17/3/2026 in Webuye SPM ELC Case No. E017 of 2024. They also sought stay of execution and stay of further proceedings arising from the amended judgment or orders made by the trial court pending hearing and determination of the intended appeal. Moses Wangila Simiyu swore the affidavit in support of the application and deponed that the Respondents obtained orders in Webuye SPMELC Case No. E017 of 2024, which restrained them from interfering with the parcels of land known as Bokoli/Bokoli/1609, 1612 and a portion of 4095. He averred that the Respondents irregularly moved the trial court through the letter under the guise of the slip rule and procured amendment of the judgment, substantively altering the original judgment and introducing new findings. The Applicants sought review of the orders of amendment of the judgment and the trial court delivered its ruling on 17/3/2026 dismissing the application. He explained that the ruling was delivered without notice and they became aware of it much later, which caused the delay in filing of the appeal. He exhibited copies of the draft memorandum of appeal, judgment and the letter from B.S Advocates to the court dated 23/1/2025 which sought correction of the judgment and the ruling delivered on 17//3/2026. 2.Dominic Oscar Wanyonyi swore the replying affidavit in which he deponed that the Applicants did not meet the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. He urged that the appeal was not arguable and that the judgment passed by the trial court was regular. He added that the application was brought after inordinate delay, judgment having been delivered on 29/10/2024 yet the application was filed almost 15 months later. 3.Moses Wangila Simiyu swore a further affidavit in which he deponed that the effect of the order dismissing the application for review was that it validated the impugned amended judgment. He urged that if stay was not granted proceedings would continue on the basis of orders whose legality they contested. He urged that the draft memorandum of appeal raised substantial issues. 4.The application was canvassed through written submissions. The Applicants submitted that the ruling sought to be appealed against was delivered without notice and that Section 79 G of Civil Procedure Act empowers this court to admit appeals out of time where sufficient cause was shown. They urged that the intended appeal raised substantial issues of law on whether the trial court improperly invoked the slip rule under Section 99 of the Civil Procedure Act and substantially altered the judgment and whether the judgment introduced substantive findings beyond the correction of clerical accidental errors. They urged that they had met the conditions for the grant of stay of execution. 5.The Respondents submitted that the Applicants had failed to meet the test for extension of time. These include the length of delay, the reasons for delay, the chances of success and the prejudice that would be caused to the Respondents. They urged that there was inordinate delay which was not explained and maintained that the intended appeal was not arguable. The Respondents pointed out that the Applicants seek stay of execution of the amended judgment dated 13/2/2025 yet the appeal only challenges the dismissal of the review application through the ruling of 17/3/2026. They added that the Applicants seek stay of execution of a judgment that is not the subject of any appeal. They maintained that the conditions of stay were not met and that the Applicants were seeking to reopen the matter which had been concluded. 6.What falls for determination in this application is whether the court should extend time for the Applicants to lodge their appeal against the decision of the Learned Magistrate, which dismissed the application for review. Their main challenge of the Learned Magistrate’s decision relates to the amendment of the judgment. 7.The court has looked at the letter dated 23/1/2025 seeking amendment of the judgment. The letter states that the claim in respect of Bokoli/Bokoli/4095 was erroneously included in the judgment yet that claim had been withdrawn as well as other prayers. There is no indication in that letter that new findings not previously determined were introduced or the judgment was altered substantively as the Applicant contends. 8.The court declines to grant the orders sought in the application dated 28/4/2026. The Respondents are awarded the costs of the application. DELIVERED VIRTUALLY AT BUNGOMA THIS 29TH DAY OF JUNE 2026.K. BORJUDGEIn the Presence of:-Court Assistants –Bett/MetrineNo appearance for the parties