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ELCPartially AllowedELC Appeal No. E015 of 2024· [2025] KEELC 4261 (KLR)

Mbaka (Suing as the Legal Administrator of the Estate of the Late Margaret Njoki Mbaka alias Njoki Mbaka) v Bizer & another (Environment & Land Miscellaneous Case E014 of 2024) (Environment and Land) [2025] KEELC 4261 (KLR)

Environment and Land Court
5 June 2025
5,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to forgive a late-filed land appeal but paused the whole case until a company's disputed directors are sorted out.

What this practically means

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Executive summary

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This Environment and Land Court decision at Naivasha, delivered by M.C. Oundo on 5th June 2025, determined two applications in ELC Appeal No. E015 of 2024, an intended appeal by Stephen Mwaura Mbaka against the judgment of Hon. Y.M. Barasa of 15th August 2024 in Naivasha CMCELC No. E028 of 2023, which had declared the 1st Respondent the legal owner of Longonot/Kijabe Block 6/708. The first application, dated 27th September 2024, sought leave to appeal out of time, the applicant's advocate having erroneously filed a Memorandum of Appeal in the High Court (HCCA E106 of 2024) instead of the ELC Court, with the fresh memorandum filed on 26th September 2024, eleven days out of time. The 1st Respondent opposed, citing the clean hands doctrine and absence of sufficient cause. The court applied Section 79G of the Civil Procedure Act, the Supreme Court's Salat principles, and Gerald M'limbine v Joseph Kangangi, holding that leave cannot be sought to admit a non-existent appeal; since no Memorandum of Appeal was on file before the ELC Court and no draft was annexed, the application was struck out with costs. The second application, dated 7th February 2025 by the 2nd Respondent company, sought stay of proceedings pending Nairobi High Court Judicial Review Case No. E267 of 2024 concerning an irregular change of its directors. Applying the stringent threshold for stay, Halsbury's Laws, Ringera J's Global Tours & Travels test, and the Supreme Court's Githiga v Kiru Tea Factory decision, the court held that the genuine directorship dispute, intertwined with the land proprietorship question, justified a stay. The stay was granted with costs; the appeal proceedings are stayed pending determination of the company's bona fide directors.

Key legal issues

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01

Whether leave should be granted to file an appeal out of time

Holding

The application was struck out because no Memorandum of Appeal was on file before the court; extension of time is an equitable remedy not a right

Reasoning

Section 79G of the Civil Procedure Act permits admission of an appeal out of time on good and sufficient cause, following the Salat principles. The court adopted the interpretation in Gerald M'limbine that an intending appellant must first file the appeal and then seek leave. The applicant had only filed a memorandum in the High Court, not the ELC Court, and had not annexed a draft memorandum of appeal. Extension of time being equitable, the applicant failed to lay a proper basis.

p. 9
02

Whether proceedings should be stayed pending determination of the 2nd Respondent's directorship

Holding

Proceedings in ELC Appeal No. E015 of 2024 stayed pending determination of the 2nd Respondent's bona fide directors in the Judicial Review case

Reasoning

The court noted the stringent threshold for stay of proceedings per Halsbury's Laws and Kenya Wildlife Service v Mutembei. Relying on the Supreme Court's decision in Githiga v Kiru Tea Factory, it held that where directorship of a company party is genuinely disputed and awaits resolution by the Registrar of Companies, a company cannot properly instruct advocates or defend its interests, and the land dispute is intertwined with company control, justifying a stay to prevent injustice or futile litigation.

p. 11

Legal principles established

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  • An applicant seeking admission of an appeal out of time under the proviso to Section 79G must in effect have filed the appeal and simultaneously seek leave; permission cannot be sought to admit a non-existent appeal
  • Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation and access to justice; the test is high and stringent
  • Where there is a genuine and serious dispute over the legitimate board of directors of a company party to litigation, the court may stay proceedings until directorship is settled

Court orders

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  1. 1.The Applicant's Application dated 27th September 2024 is struck out with costs
  2. 2.The proceedings in ELC Appeal No. E015 of 2024 are stayed pending a determination of the 2nd Respondent's bona fide Directors in Nairobi High Court Judicial Review Case No. E267 of 2024
  3. 3.The 2nd Respondent's Application dated 7th February 2025 is allowed with costs
On appeal from
Principal Magistrate's Court at Naivasha (CMCELC)
E028 of 2023
Jurisdiction invoked
Sections 3A, 79G and 95 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3, 3A & 6 of the Civil Procedure Act; Article 159(2) of the Constitution

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, "Mbaka (Suing as the Legal Administrator of the Estate of the Late Margaret Njoki Mbaka alias Njoki Mbaka) v Bizer & another (Environment & Land Miscellaneous Case E014 of 2024)  (Environment and Land) [2025] KEELC 4261 (KLR)", Case Analysis (2025). ELC Appeal No. E015 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4261/eng@2025-06-05

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