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ELCPartially AllowedELC Misc Appl No. E019 of 2024 (Kericho)· [2025] KEELC 2883 (KLR)

Kenya Forest Service v Ruto (Environment and Land Miscellaneous Application E019 of 2024) [2025] KEELC 2883 (KLR)

Environment and Land Court
27 March 2025
5,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's land court let KFS appeal late, but refused to stop enforcement of the ruling dismissing its case, explaining a missed deadline can win leniency without freezing everything.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho determined a Notice of Motion dated 8th July 2024 by the Kenya Forest Service (KFS), an Applicant, seeking leave to appeal out of time against a ruling of 25th April 2024 in Kericho CMCC No. E028 of 2021, deemed filing of its Memorandum of Appeal (ELCA E006 of 2024, filed 14th June 2024), and stay of execution of that ruling. The underlying dispute concerns land parcel Kericho/Kipkelion/Chepseon Block 11 (Sitian) 17, which KFS contends forms part of the gazetted South Western Mau Forest, and which the Respondent claims as beneficial owner through a deceased husband purchaser and confirmed succession. The ex parte judgment was delivered on 22nd March 2023, and KFS's application to set it aside was dismissed on 25th April 2024. The delay in filing the appeal was explained by counsel's compassionate leave and the unavailability of typed proceedings until 5th June 2024. Applying Section 79G of the Civil Procedure Act and the factors in Stecol Corporation Ltd v Susan Awuor Mudemb, the court found the delay sufficiently explained, no prejudice to the Respondent, and extended time, deeming the Memorandum of Appeal duly filed. However, the court refused the stay of execution, holding that the dismissal of the set-aside application was a negative order incapable of stay, citing Joseph Muthuri v Cooperative Bank. Costs were made to abide the outcome of the appeal. The application thus partially succeeded.

Key legal issues

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01

Whether leave to file an appeal out of time should be granted under Section 79G of the Civil Procedure Act

Holding

Leave granted; the Applicant sufficiently explained the delay (counsel on compassionate leave and typed proceedings not ready until 5th June 2024) and the Respondent showed no prejudice

Reasoning

The appeal was filed nineteen days late. The Applicant produced a certificate of delay showing proceedings were only ready on 5th June 2024, and the Memorandum was filed nine days later, plus a letter evidencing counsel's leave. Guided by the factors in Stecol Corporation Ltd v Susan Awuor Mudemb (period and reason for delay, prejudice, public importance), the court found the delay explained and no prejudice demonstrated by the Respondent.

p. 33
02

Whether the Memorandum of Appeal filed out of time should be deemed duly filed

Holding

Deemed duly filed as a consequence of the extension of time

Reasoning

Having found under issue (A) that extension of time was merited, the court held it followed that the Memorandum of Appeal lodged on 14th June 2024 in Kericho ELCA No. E006 of 2024 would be deemed as duly filed.

p. 34
03

Whether stay of execution of the 25th April 2024 ruling should be granted

Holding

Refused; the dismissal was a negative order incapable of stay

Reasoning

Order 42 Rule 6(2) requires substantial loss and that no positive order be capable of execution. Citing Joseph Muthuri & 32 others v Cooperative Bank Ltd, which cited Raymond M Omboga v Austine Pyan Maranga, the court agreed with the Respondent that the order dismissing the Applicant's application was in the nature of a negative order and could not be stayed.

p. 36

Legal principles established

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  • In determining an application for extension of time, the court considers the period of delay, the reasons for the delay, the degree of prejudice to the Respondent if the application is granted, and whether the matter raises issues of public importance
  • A dismissal is a negative order incapable of execution and cannot be stayed where no positive order exists in favour of the respondent

Court orders

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  1. 1.Leave is granted to the Applicant to lodge an appeal against the ruling and order in Kericho CMCC No. E028 of 2021 out of time
  2. 2.The Memorandum of Appeal filed out of time and without leave of Court, i.e ELCA E006 of 2024, shall be deemed duly filed
  3. 3.The costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6; Order 51 Rule 1; Order 12 Rule 2(a); Order 10 Rule 8; Order 10 Rule 11; Order 5 Rule 22B
  • Civil Procedure ActSections 1A, 1B, 3A, 79G, 95
  • Forest Conservation and Management Act No. 34 of 2016Section 7
  • Constitution of KenyaArticles 10, 40, 159(1)

Cases cited (19)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Appeal 255/1997
  • Absa Bank Kenya PLC (Formerly Barclays Bank of Kenya Limited) v Nyarecha & 2 Others
    [2023] eKLR
  • Charles N. Ngugi vs ASL Credit Limited
    [2022] eKLR
  • Laikera v Kalula
    (Environment and Land Miscellaneous Application E015 of 2022) [2022] KEELC 13514 (KLR) (5 October 2022)
  • Andrew Kiplagat Chamaringo vs Paul Kipkorir Kibet
    [2018] eKLR
  • Wanjiru v Korir
    (Environment and Land Miscellaneous Application 52 of 2022) [2023] eKLR
  • Obunga & another v Onsase
    (Environment and Land Miscellaneous Application 6 of 2023) [2023] KEELC 21826 (KLR) (29 November 2023)
  • First American Bank of Kenya Ltd vs Gulab P. Shah & Others
    HCC 2255/2000 [2002] IEA 65
  • Kenya Revenue Authority vs Habimama Sued Hemed & another
    [2015] eKLR
  • Western College of Arts and Applied Sciences v EP Oranga & 3 Others
    [1976] eKLR
  • Catherine Njeri Maranga v Serah Chege & another
    [2017] eKLR
  • Stecol Corporation Limited v Susan Awuor Mudemb
    [2021] eKLR
  • Charles Karanja Kiiru Vs Charles Githinji Muigwa
    [2017] eKLR
  • Wanjiru Mwangi & Another
    [2015] eKLR
  • APA Insurance Co. Ltd Vs Michael Kinyanjui Muturi
    [2016] eKLR
  • Edith Gichungu Koine Vs Stephen Njagi Thoithi
    [2014] eKLR
  • Kamlesh Mansukhalal Damji Pattni v Director Of Public Prosecutions & 3 others
    [2015] eKLR
  • Joseph Muthuri & 32 others v Cooperative Bank Limited & 15 others
    [2018] eKLR
  • Raymond M Omboga v Austine Pyan Maranga
    Kisii HCCA Number 15 of 2010
On appeal from
Chief Magistrate's Court, Kericho
Kericho CMCC No. E028 of 2021
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Forest Service v Ruto (Environment and Land Miscellaneous Application E019 of 2024) [2025] KEELC 2883 (KLR)", Case Analysis (2025). ELC Misc Appl No. E019 of 2024 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2883/eng@2025-03-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.