Wairimu v Mutuku (Environment and Land Appeal E063 of 2025) [2026] KEELC 3653 (KLR) (16 June 2026) (Ruling)

Wairimu v Mutuku (Environment and Land Appeal E063 of 2025) [2026] KEELC 3653 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3653 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Appeal E063 of 2025 AY Koross, J June 16, 2026 Between Paul Mwangi Wairimu Applicant and Peter Nganga Mutuku Respondent Ruling 1.Before this court for determination is a notice of motion dated 1 October 2025, filed by the applicant, expressed to have been brought under Order 42 Rules 1, 2 and 6 and Order 51 Rule I of the Civil Procedure Rules, 2010; Sections 3, 3A, and 79G of the Civil Procedure Act; Articles 50 and 159(2)(d) of the Constitution of Kenya; and all enabling provisions of the Law. He prays for the following orders from this court: -a.Spent.b.THAT this honourable court be pleased to grant the applicant leave to file a memorandum of appeal as per the attached draft and leave to file a record of appeal out of time in respect of the judgment of the honourable P. Wechuli in the principal magistrate court at Kithimani delivered on 22nd February, 2024, in Kithimani MCELC CASE NO. 10 OF 2020 Paul Mwangi Wairimu Versus Peter Ng’ang’a Mutuku.c.THAT the costs of this motion be in the cause. 2.The motion is supported by several grounds presented on its face and by the supporting affidavit of the applicant and his counsel, Catherine Wanjiku Kariuki, both sworn on the instant date. 3.As for the applicant, he succinctly informs the court that after receiving judgment on 22nd February 2024, he promptly instructed counsel to initiate an appeal. Shortly thereafter, he became seriously ill, which, together with financial constraints, prevented timely communication and the provision of instructions to his counsel. 4.These difficulties persisted throughout most of 2024 and were further complicated by the counsel’s maternity and study leave in early 2025. His health gradually improved by August 2025, allowing a meeting with counsel in September 2025, during which full instructions for the appeal were finally given. He informs the court that the application is made in good faith and asserts that the appeal has strong prospects for success, with any delays attributable solely to health and financial hardships. 5.Regarding his counsel, she maintains that following the issuance of the impugned judgment, the applicant was informed about the judgment and he instructed that the respondent be notified of the intention to appeal and that relevant documents be prepared for filing the appeal. A further meeting was planned to discuss errors in the judgment and obtain additional instructions for the memorandum of appeal. However, the applicant remained unreachable for several weeks despite repeated attempts to contact him. 6.Additionally, in August 2024, it was learned from the applicant’s wife that he had fallen seriously ill. Her maternity leave commenced towards the end of August 2024, followed by study leave in January 2025. In June 2025, attempts were made to reach the applicant to check on his condition and to arrange a meeting to provide full appeal instructions, but he remained unreachable until late August 2025. A meeting was eventually held in the third week of September 2025, during which full instructions for filing the appeal were obtained. 7.Upon service, the respondent challenged the motion through his replying affidavit dated 27 October 2025, where he states that the application is an afterthought and lacks substance. The reasons given do not excuse the 20-month delay. Section 79G of the Civil Procedure Act states that every appeal from subordinate courts, including this one, must be filed within 30 days from the date of judgment, which was by 22nd March, 2024. 8.Furthermore, the applicant offers only general excuses for the delay, and there is no specific reason given for failing to file the appeal within the required 30 days. The only reasons offered by the applicant and his advocate relate to several months after the judgment and are outside the prescribed time. The applicant claims to have been unwell and has attached three letters from a medical professional in Murang’a. However, these letters do not specify any illness and are general statements, a common tactic used by parties seeking to avoid statutory deadlines. The applicant is well known in Murang’a and has continued working as a matatu driver, so he has not been unwell as claimed or unable to give instructions to file an appeal. The appeal itself has no chance of success. 9.Subsequently, and as directed by the court, the motion is argued through written submissions. The law firms of Mss. GNK & Associates LLP & Co. Advocates for the applicant submitted their filings dated 20 February 2026, and Obat Wasonga & Co., on behalf of the 1st respondent, submitted theirs dated 10 December 2025. 10.Nonetheless, both submissions failed to adhere to the strict page-limit directives and included extensive arguments. Without unnecessary elaboration, and guided by the Supreme Court of Kenya's decision in Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others [2023] KESC 69 (KLR), this court hereby strikes out these submissions. Accordingly, the court has thoroughly examined the motion, its grounds, and the affidavits, and it suffices to say that the sole issue for determination is whether an extension of time should be granted to the applicant. 11.In addressing the distilled issue, it is imperative for this court to emphasise the pertinent legal provisions concerning the extension of time to lodge an appeal. Concerning this matter, as indicated on the face of the motion, Section 79G of the Civil Procedure Act stipulates that any party involved in proceedings before the lower court who is dissatisfied with its decision may, within 30 days of the decision, lodge an appeal to the superior court authorised to hear such appeals. 12.Nonetheless, in cases involving delays, parties may, as the applicant has done, make an application to the court under Section 95 of the Civil Procedure Act, requesting the court to exercise its sound discretion based on valid and sufficient grounds. The court may, at its discretion, subsequently extend the prescribed period, even if the initial period has expired. Section 79G of the Civil Procedure Act states;“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 good and sufficient cause for not filing the appeal in time.”While Section 95 of the Civil Procedure Act provides as follows: -“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.” 13.In regard to the prevailing jurisprudence, the decision of the apex court, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, espoused the guiding non-exhaustive principles that guide courts in entertaining applications of this nature. In this decision, the apex court summarised the non-exhaustive principles as follows:“ 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 for 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.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 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, public interest should be a consideration for extending time.” 14.Further, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR), the Court of Appeal stated: -“(12)The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 15.In considering the motion, this court has to bear in mind that though it has unfettered discretion, it must exercise its judicious discretion, which is anchored on reason, material, and evidence placed before it. Furthermore, the circumstances of each case are unique, as even a single day can amount to a delay, and each case must be considered on its own set of conditions. 16.Respecting the first point for consideration of delay, it is undeniable that the motion is filed with undue delay as the impugned judgment is alleged to have been rendered on 22 February 2024 and the motion was filed on 5 October 2025; a period of about 20 months. 17.As for the second point concerning a reasonable and satisfactory explanation, this court, upon deliberation of the reasons for the delay, concurs with the respondent that, in advancing reasons for the delay, the applicant has been on a fishing expedition and has advanced all manner of reasons, including being ill, taking care of young children, financial constraints, his counsel being on maternity and study leave, and his counsel handling the matter on a pro bono basis. 18.This court has yet to understand the relationship between his counsel’s maternity and study leave to the delay, as both purportedly occurred in August 2024 and January 2025, respectively, well after the expiry of the 30-day period to appeal, which ended on 23 March 2024. Nonetheless, it has been affirmatively stated that the applicant was dissatisfied immediately following the delivery of the impugned judgment, and, at the end of the day, the case belonged to him and not to his counsel. So what delayed the applicant from lodging his appeal notwithstanding his counsel’s sentiments? 19.The primary reason for the delay was his alleged medical incapacitation between 2024 and 2025. To substantiate this, he presented medical notes dated 15 March 2025, 5 January 2025, and 7 September 2025, purportedly authored by an alleged nurse-in-charge at Kamahuha Health Centre, a government facility. The respondent alludes to the possibility that these documents may have been falsified, given that the applicant has been actively engaged in duties as a matatu driver and that the medical records merely demonstrate generalised illness. 20These allegations raised by the respondent were not countered by a supplementary affidavit. Furthermore, this court has examined the medical notes in question, which raise more questions than they answer. The author of these notes, who claims to have provided personal care to the applicant, remains unidentified. The nature of the applicant's incapacity is not specified, and no medical report from a qualified doctor has been submitted. Additionally, there is no record of a hospital admission, as the notes appear to have been generated by a dispensary. These notes, which are largely identical save for the dates, granted the applicant an indefinite leave of absence, stating: “... lay low until further evaluation medical evaluation determine their readiness to resume normal duties.” 21.Furthermore, as these notes granted the applicant an indefinite leave of absence from employment until a further medical evaluation is conducted, one questions how he was suddenly able to instruct his counsel between August and September 2025 to pursue his intended appeal, despite the absence of a subsequent medical note from his alleged healthcare provider showing clearance from the purported indefinite malaise. 22.Therefore, and in the circumstances, this court is not satisfied that the medical notes substantiate the applicant’s claimed illness. It finds that the application is an afterthought. It further finds that the applicant has not provided satisfactory reasons to justify the exercise of discretion in his favour. It finds the motion is not meritorious. 23.In the end, the notice of motion dated 1 October 2025 is dismissed with costs to the respondent. The memorandum of appeal dated 1 October 2025, filed without leave, is hereby struck out. The file is hereby marked as closed.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 16TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE16.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Wasonga for respondent.Miss Kariuki for appellant.