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ELCDismissedKapsabet CMC ELC No. E108 of 2021 (intended appeal)· [2025] KEELC 3204 (KLR)

Cheptoo (Suing as Administrator of the Estate of Dinah Cheptum Ng’etich) v Onoka (Land Case Appeal E007 of 2024) [2025] KEELC 3204 (KLR)

Environment and Land Court
7 April 2025
GOG.M.A Ongondo
2,212 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to appeal 12 months late, stressing that unexplained delay defeats even a potentially strong case.

What this practically means

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Executive summary

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By Notice of Motion dated 8th May 2024 under Article 40 of the Constitution, Sections 79G and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, 2010, the applicant sought leave to appeal out of time against the judgment of Hon. D. A. Charo (SPM) delivered on 12th April 2023 in Kapsabet CMC ELC No. E108 of 2021, together with stay of execution and a temporary injunction over LR. Nandi/Kamobo/4174. She claimed she was never served with the trial pleadings, was in active occupation of the land registered in her deceased mother's name, and only learnt of the summary judgment in April 2024 when the respondent attempted to trespass; she also discovered the land had been transferred to one Chirchir Tenai, a non-party. The respondent opposed, arguing there was nothing to stay, that the applicant had been served and simply failed to file a defence, that the appeal was unarguable, and that security for assessed costs had not been furnished. Framing four issues, the court applied the Salat criteria and Njoroge v Kimani and held the delay of over 12 months inordinate, inexcusable and unexplained, rendering the application an afterthought, especially since the decree and certificate of costs had been drawn. Stay and injunction were refused because the suit land had been disposed of to a non-party and leave to appeal had not been granted. The application was dismissed with costs to the respondent on 7th April 2025.

Key legal issues

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01

Whether the delay of over 12 months in seeking leave to appeal out of time was excusable

Holding

The delay was inordinate and inexcusable; no reasonable explanation was advanced and the application was an afterthought

Reasoning

The judgment sought to be appealed was delivered on 12th April 2023, yet the application was lodged on 15th May 2024, over 12 months later. Applying the Salat criteria and the Njoroge v Kimani principles, the court found no reasonable and acceptable explanation for the delay, and noted that costs at the trial had been assessed with decree and certificate of costs drawn, indicating the application was an afterthought. Prospects of success cannot cure an unexplained delay.

p. 5
02

Whether stay of execution and injunction could issue pending the intended appeal

Holding

Neither order could issue because the suit land had been transferred to a non-party and leave to appeal out of time had not been granted

Reasoning

Order 42 Rule 6(2) requires substantial loss, no unreasonable delay, and security. The applicant conceded the suit land had been transferred to Chirchir Tenai, a non-party, rendering the application effectively moot. Further, since leave to appeal out of time was refused, no stay of execution could issue, and consequently an injunction could not be granted either.

p. 5

Legal principles established

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  • An application for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard
  • Without a reasonable and acceptable explanation for the delay, prospects of success are immaterial in a condonation application

Court orders

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  1. 1.The application by way of a Notice of Motion dated 8th May 2024 is dismissed with costs to the respondent
Jurisdiction invoked
Article 40 of the Constitution of Kenya, Sections 79G and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, 2010

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, "Cheptoo (Suing as Administrator of the Estate of Dinah Cheptum Ng’etich) v Onoka (Land Case Appeal E007 of 2024) [2025] KEELC 3204 (KLR)", Case Analysis (2025). Kapsabet CMC ELC No. E108 of 2021 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3204/eng@2025-04-07

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