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ELCAllowedNot stated in judgment (Tawa MCELC Appeal; application dated 9th October 2024)

Paschal (Prosecuting as the Personal Representative of the Estate of Pascal Mule Nzyuko) v Muthoka & 2 others (Environment and Land Appeal E002 of 2023) [2025] KEELC 2940 (KLR)

Environment and Land Court
27 March 2025
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a family to continue a land appeal after the appellant died, granting 45 days to comply with earlier orders.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 9th October 2024 brought under Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act and Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, in an appeal pending before the Environment and Land Court at Tawa. The Applicant, Josephat Kiluva Paschal, sought enlargement of time to comply with conditional orders of stay of proceedings issued on 15th November 2023 in Tawa MCELC Case No. 175 of 2019, substitution of the deceased Appellant Pascal Mule Nzyuko with himself, and release of the lower court file. He explained that his former advocate, Mr. Kisongoa, died on 31st October 2023 before the ruling was delivered; the Appellant died on 20th November 2023; the death certificate issued only on 11th July 2024; and he obtained a limited grant ad litem on 31st July 2024. The Respondent opposed, alleging inordinate delay, loss of interest in the appeal, and absence of a draft record of appeal, and warned of prejudice if the lower court file was released. Applying Section 95 of the Civil Procedure Act and the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, the court held the reasons for non-compliance reasonable and satisfactory, noting that nobody can anticipate Acts of God. Allowing the application, the court enlarged time by 45 days for compliance with the ruling of 15th November 2023, substituted Josephat Kiluva Paschal for the deceased Appellant, directed that the lower court file be availed, and ordered costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has demonstrated merit in the application for enlargement of time on the ruling of this court delivered on 15/11/2023.

Key legal issues

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01

Whether the Applicant demonstrated merit for enlargement of time regarding the 15/11/2023 conditional stay orders

Holding

The reasons for non-compliance (death of the appellant and of his advocate, delayed issuance of the death certificate, and the time taken to obtain a limited grant ad litem) were reasonable and satisfactory, and the court enlarged time by 45 days

Reasoning

The court applied Section 95 of the Civil Procedure Act and the Salat principles on extension of time. The delay was occasioned by the death of the appellant five days after the ruling, the death of the sole-proprietor advocate, the delayed death certificate (issued 11/07/2024) and the grant ad litem issued 31/07/2024, with the application made shortly thereafter. These were deemed extenuating Acts of God, no prejudice outweighing the equities, and the overriding objective favoured allowing compliance.

Legal principles established

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  • Enlargement of time is a discretionary power under Section 95 of the Civil Procedure Act, exercisable even after the original period has expired

Court orders

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  1. 1.An Order of enlargement of time issued for a limited duration of Forty-five (45) Days for the Applicant to comply with the Ruling delivered on 15th November, 2023
  2. 2.The Applicant Pascal Mule Nzyuko is substituted by Josephat Kiluva Paschal
  3. 3.The Lower Court File TAWA MCELC CASE NO. 175 OF 2019 to be availed
  4. 4.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act; Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An Order of enlargement of time is hereby issued for a limited duration of Forty-five (45) Days for the Applicant to comply with the Ruling delivered on 15th November, 2023 herein.
p. 4final orders - extension of time
The Applicant Pascal Mule Nzyuko is substituted by Josephat Kiluva Paschal.
p. 4final orders - substitution
The Lower Court File TAWA MCELC CASE NO. 175 OF 2019 to be availed.
p. 4final orders - lower court file
Costs in the cause.
p. 4final orders - costs
Under Section 1A of the Civil Procedure Act, the overriding objective and the duty of this Court is to facilitate the just, expeditious, proportionate and afiordable resolution of civil disputes.
p. 4overriding objective
Enlargement of time is a discretionary power vested with this court in accordance with the provisions of Section 95 of the Civil Procedure Act
p. 3jurisdiction to enlarge time

Issues in the judgment

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minor

The Applicant is referred to interchangeably as 'Pascal Mulei Nzyukobe', 'Pascal Mule Nzyuko' and 'Pascal Nzyuko', and the Applicant states his capacity as guardian ad litem ceased upon the death while the court substitutes him as Applicant; the deceased's exact name spelling is inconsistent

minor

Dates of filing the application differ: motion dated 9th October 2024, but judgment refers to the application having been made on 11/10/2024

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, "Paschal (Prosecuting as the Personal Representative of the Estate of Pascal Mule Nzyuko) v Muthoka & 2 others (Environment and Land Appeal E002 of 2023) [2025] KEELC 2940 (KLR)", Case Analysis (2025). Not stated in judgment (Tawa MCELC Appeal; application dated 9th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2940/eng@2025-03-27

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