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ELCDismissedMiscellaneous Application dated 30th September 2024 (in intended appeal against Gatundu Misc. App. No. E032 of 2021)· [2025] KEELC 5348 (KLR)

Waithaka v Gatumbi (Environment and Land Miscellaneous Case E066 of 2024) [2025] KEELC 5348 (KLR)

High Court of Kenya
15 July 2025
JOJ. M Onyango
1,828 words in judgment
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The bottom line

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The High Court dismissed a widow's bid to appeal a land judgment because she was never a party to the original case and never sought leave to appeal as a non-party.

What this practically means

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Executive summary

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This ruling of the High Court (J. M Onyango, Judge) determined the Applicant's Notice of Motion dated 30th September 2024, brought under Article 159(2)(d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Applicant, widow and administratrix of Michael Waithaka Gatumbi, sought stay of execution of the decree in Gatundu Miscellaneous Application No. E032 of 2021 (which enforced the award in Gatundu Land Disputes Tribunal Cause No. 9 of 2006 by directing the excision of one acre from parcel Kiganjo/Mundoro/3119) and leave to appeal out of time against the judgment of 15th November 2023. She claimed she and her late husband were never parties to or served with those proceedings, that the Tribunal lacked jurisdiction over title questions, and that she holds beneficial and spousal interests under Section 28 of the Land Registration Act. The Respondent maintained she was a stranger to the land and that the application was an abuse of process. The court framed two issues: extension of time and stay of execution. Applying Section 79G and the extension-of-time principles in the County Executive of Kisumu case, and the Court of Appeal's holding in Attorney General v Bala that the right of appeal is statutory and belongs to parties or non-parties granted leave, the court found the Applicant was not a party below and had not sought leave to appeal as a non-party, and therefore lacked locus standi to appeal. The stay prayer fell away. The application was dismissed with costs to the Applicant.

Key legal issues

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01

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

Holding

Refused. The court has a wide but judicious discretion to extend time, but the Applicant was neither a party nor a person granted leave to appeal as a non-party, so she lacks locus standi to appeal at all.

Reasoning

Section 79G allows admission of an appeal out of time on good and sufficient cause. However, the right of appeal is a creature of statute and inheres in parties to the suit or non-parties who obtain leave. The Applicant and her deceased husband were not parties to the Land Disputes Tribunal proceedings or Miscellaneous Application No. E032 of 2021, and she only sought extension of time, not leave to appeal as a non-party. She therefore lacks standing.

p. 4
02

Whether stay of execution should issue pending the intended appeal

Holding

Not considered. The prayer fell away because the application for extension of time was refused, rendering the intended appeal incompetent.

Reasoning

Stay of execution under Order 42 Rule 6 presupposes a competent intended appeal. Having rejected the plea to appeal out of time, the court declined to delve into the stay prayer and dismissed the entire application with costs to be borne by the Applicant.

p. 4

Legal principles established

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  • The right to appeal is statutory and belongs only to a party to the suit, or to a non-party aggrieved by a judgment who obtains leave of the court to appeal.
  • As a general rule, a person must have been a party in the original case to have standing to appeal.
  • Extension of time is an equitable discretionary remedy, guided by factors including explanation of the delay, prejudice, and promptness in bringing the application.

Court orders

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  1. 1.The application dated 30th September 2024 is dismissed.
  2. 2.The Applicant shall bear the cost of the Application.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A and 79G
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Environment and Land Court ActSection 13
  • Land Registration Act, 2012Section 28

Cases cited (2)

  • County Executive of Kisumu v County Government of Kisumu and 8 Others
    [2017] eKLR
  • Attorney General vs Bala
    (Civil Appeal 223 of 2017) [2023]
On appeal from
Gatundu Senior Principal Magistrates Court
Gatundu-Misc App No. E032 of 2021
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 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, "Waithaka v Gatumbi (Environment and Land Miscellaneous Case E066 of 2024) [2025] KEELC 5348 (KLR)", Case Analysis (2025). Miscellaneous Application dated 30th September 2024 (in intended appeal against Gatundu Misc. App. No. E032 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5348/eng@2025-07-15

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