Waime v Mwangi & 2 others (Civil Appeal 296 of 2019) [2026] KECA 1288 (KLR)
The bottom line
#The Court of Appeal dismissed a landowner's bid to revive her struck-out adverse possession appeal, confirming that late-filed appeals without leave are dead on arrival.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant satisfied the requirements for an order of stay of execution/proceedings at the ELC
- 2.Whether the application for re-hearing of the application dated 26th August 2019 met the threshold under rule 58(2) of the Court of Appeal Rules
- 3.Whether the appeal struck out on 10th July 2024 ought to be reinstated
Key legal issues
#Stay of execution/proceedings under Rule 5(2)(b)
The stay prayer fails because the motion did not invoke rule 5(2)(b), there was no competent appeal pending, and the ELC judgment was a negative order with nothing to stay.
Rule 5(2)(b) is the tool for preservation of the substratum of an appeal and is derived from Article 164(3) of the Constitution. The twin tests are an arguable appeal and that the appeal would be rendered nugatory. Here the ELC dismissed the applicant's suit, a negative outcome that does not ordinarily qualify for a stay, and in any event there being no competent appeal pending, the jurisdiction was not properly invoked.
Re-hearing under rule 58(2) and (3)
The applicant failed to demonstrate sufficient reason for re-hearing the striking-out application; she was represented and duly notified at case management and on the hearing date.
The Court found that case management took place on 12th March 2024 in the presence of the applicant's then counsel, directions were given, and a hearing notice issued on 27th June 2024; counsel Mr. Gakaria was present on the hearing date. The explanation of a 'mix up of files' did not amount to justifiable excuse, and no useful different outcome would result from re-opening the application since the grounds for striking out remained intact.
Reinstatement of the struck-out appeal
Reinstatement was refused because the record and memorandum of appeal were filed out of time without leave, rendering the appeal incompetent and a nullity.
Although the notice of appeal was filed on time, it was served out of time; the record of appeal was lodged about four months after judgment without leave to extend time. Compliance with rule 84(2) regarding the certificate of delay was also in doubt because the request for proceedings was not copied or served on the other party. Applying the Salat principle, the appeal was a nullity and could not be revived.
Legal principles established
#- Article 159 of the Constitution does not confer jurisdiction to admit appeals filed out of time; the proper route is an extension-of-time application under Rule 4 of the Court of Appeal Rules.
- An appeal filed out of time and without leave of the Court is incompetent and a nullity.
- The discretion to extend time under Rule 4, though unfettered, must be exercised judiciously and upon reason, not arbitrarily or on a whim.
- A dismissal of a suit is a negative order which does not ordinarily qualify for a stay of execution at the appellate level, as there is nothing to stay.
Court orders
#- 1.The notice of motion dated 30th July 2024 is dismissed
- 2.Costs to the 1st and 2nd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal (prior ruling of same court; underlying suit in Environment and Land Court at Thika)
- Originating Summons dated 24th December 2012 (ELC Thika)
- Jurisdiction invoked
- Rules 1(2), 4, 23, 28(c), 43, 48, 58(3) & (4) of the Court of Appeal Rules; Section 10 of the Judicature Act; sections 3A & 3B of the Appellate Jurisdiction Act
Relief refused
#Stay of proceedings/execution at the ELC
The motion was not brought under rule 5(2)(b); the ELC judgment was a negative order (dismissal of suit) with nothing to stay; and there was no competent appeal pending
Re-hearing of the application dated 26th August 2019
The applicant was represented at the hearing, was properly notified through counsel, and the explanation for non-filing of a response did not amount to justifiable excuse
Reinstatement of the appeal struck out on 10th July 2024
The appeal was lodged out of time and without leave; under the Salat principle it was incompetent and a nullity
Costs
Costs to the 1st and 2nd respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the notice of motion dated 30th July 2024 is dismissed. Costs to the 1st and 2nd respondents.
the noble provision at Article 159 of the Constitution relied on by counsel for the applicant does not confer jurisdiction for admission of appeals out of time and that the proper way to move this Court is through the route of Rule 4 of this Court's rules for extension of time
Clearly under the principle stated in the case of Nicholas Kiptoo Salat (Supra) the appeal sought to be revived was incompetent and a nullity.
There is, therefore, nothing to stay in such negative order.
We are persuaded by the submissions of the respondent in saying that the explanation for the failure to file any response does not amount to justifiable or reasonable excuse in the circumstances.
Issues in the judgment
#The judgment inconsistently dates the striking-out application, referring to it as dated 26th August 2019 in most passages but as 29th August 2019 and then 26th August 2026 in later passages.
The judgment records oral highlights as having been made on 16th June 2026, while the application was filed on 30th July 2024 and the ruling delivered 10th July 2026; the year 2026 for the hearing appears anomalous against the stated filing timeline.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waime v Mwangi & 2 others (Civil Appeal 296 of 2019) [2026] KECA 1288 (KLR)", Case Analysis (2026). Civil Application (Notice of Motion dated 30th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1288/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.