[2025] KEELC 1027 (KLR)
The court found that it has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend the time for filing a notice of appeal, even after the lapse of the statutory period. Although the applicant did not promptly file the application and failed to cite the primary law on stay of execution, the court...
Source-derived case information.
- Citation
- [2025] KEELC 1027 (KLR)
- Parties
- Appellant: Geofrey Maina Wanjau; Respondent: Martin Ndegwa Migwi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E012 of 2022
- Procedural Posture
- Stay Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application allowed with conditions.
- Judges
- LN Mbugua
- Legal Topics
- Extension of Time, Stay of Execution, Notice of Appeal, Land Partition, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geofrey Maina Wanjau
Appellant
Martin Ndegwa Migwi
Respondent
Procedural Posture
Stay Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the court should extend time for filing a notice of appeal after the statutory period has lapsed.
- 2 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
Ratio Decidendi
The court found that it has jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend the time for filing a notice of appeal, even after the lapse of the statutory period. Although the applicant did not promptly file the application and failed to cite the primary law on stay of execution, the court considered the ongoing execution process and the need to allow the applicant an opportunity to ventilate his issues before the Court of Appeal. The court therefore exercised its discretion to grant both the extension of time and a conditional stay of execution, balancing the interests of justice and the right of appeal, but condemned the applicant to pay the costs of the...
Court Disposition
Application allowed with conditions.
Orders
- Time to file a notice of appeal is extended for 14 days from the date of this ruling.
- A stay of execution of the judgment delivered on 20.8.2024 is allowed for 90 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
Wanjau v Migwi (Environment and Land Appeal E012 of 2022) [2025] KEELC 1027 (KLR) (5 March 2025) (Ruling)
Neutral citation: [2025] KEELC 1027 (KLR)
Republic of Kenya
In the Environment and Land Court at Nanyuki
Environment and Land Appeal E012 of 2022
LN Mbugua, J
March 5, 2025
Between
Geofrey Maina Wanjau
Appellant
and
Martin Ndegwa Migwi
Respondent
Ruling
1. Judgment was delivered herein on 20. 8.2024 in which the appeal was dismissed while the cross appeal was allowed. The appellant has filed an application dated 28. 1.2025 seeking orders for extension of time to file a notice of appeal as well as a stay of execution of the said judgment pending the hearing of the appeal. He contends that he was not aware of the judgment delivered on 20. 8.2024 and he therefore desires to lodge an appeal.
2. In opposition thereof, the respondent filed a replying affidavit dated 11. 2.2025 contending that judgment was delivered on 20. 8.2024 in the presence of both counsels for the parties, adding that the application has been filed rather late, almost half a year from the time judgment was delivered.
3. The provisions of Section 7 of the Appellate Jurisdiction Act provides that;“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired”.
4. It follows that this Court does have a mandate to extend time to lodge a Notice of Appeal. However, the validity of such a notice, as well as any substantive appeal filed are in the domain of the Court of Appeal. See -Samwel Kimutai Korir (Suing as Personal and Legal Representative Of Estate) of Chelangat Silevia v Nyanchwa Adventist Secondary School & Nyanchwa Adventist College [2017] KEHC 2780 (KLR)
5. On the issue of Stay of Execution of the judgment, I find that the applicant has not cited the primary law governing matters of stay of execution which is Order 42 Rule 6 of the Civil Rules. However, from the Replying Affidavit of the respondent, I discern that the surveyor has gone to the suit property to hive off the portion of the land due to the respondent. In order to give the applicant an opportunity to ventilate his issues to the Court of Appeal, the court will grant a conditional stay of execution of the judgment.
6. In the end, the application dated 28. 1.2025 is allowed in the following terms.i.That time to file a notice of appeal is extended for 14 days from the date of delivery of this ruling.ii.That a stay of execution of the judgment delivered on 20. 8.2024 is allowed for a period of 90 days from the date of delivery of this ruling.iii.That the applicant is condemned to pay the costs of this application.
DATED, SIGNED AND DELIVERED AT NANYUKI THIS 5TH DAY OF MARCH 2025 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Kirimi for Appellant.Mukhama for Respondent.Court Assistant: Nancy Mwangi