Nthenge v Mulwa & 3 others (Environment and Land Miscellaneous Application E057 of 2025) [2025] KEELC 5710 (KLR)
The bottom line
#The High Court in Machakos let a sick litigant file his appeal late and halted execution of the judgment against him, provided he files the appeal within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file appeal under Section 79G
The delay was not inordinate because the Applicant's ill health, evidenced medically, incapacitated him; the court found the application merited
The court set out the Section 79G test and the Salat principles requiring an applicant to lay a basis for extension. It examined the pleadings, found the Applicant's advocate ceased acting and the Applicant, on documentary medical evidence, was incapacitated and unable to follow proceedings. Comparing the ruling date (12th November 2024) with the application date (12th June 2025), the court found no inordinate delay in the circumstances and granted leave.
Stay of execution pending appeal under Order 42 Rule 6(2)
Stay was granted as prayer 4, conditioned on the appeal being filed and served within 30 days
The court restated the three conditions: unreasonable delay, substantial loss, and security. It found the delay not inordinate, accepted the threat that execution would deprive the old and ailing Applicant of the disputed land and render the appeal nugatory, and granted stay alongside the extension of time, with the 30-day filing condition protecting the Respondent.
Legal principles established
#- An appeal from a subordinate court must be filed within thirty days, but may be admitted out of time on good and sufficient cause being shown
- Extension of time is a discretionary equitable remedy requiring the applicant to lay a basis for the delay
- Stay of execution requires substantial loss, absence of unreasonable delay, and an offer of security
- The purpose of stay is to preserve the subject matter so a successful appellant does not get only a paper judgment
Court orders
#- 1.Leave granted to the Applicant to file the Memorandum of Appeal out of time (prayer 2)
- 2.Stay of execution of the Judgment dated 7th June 2023 and Decree dated 4th July 2023 pending the hearing and determination of the Appeal (prayer 4)
- 3.The appeal to be filed and served within the next 30 days
- 4.Costs of the application to be in the cause
- On appeal from
- Chief Magistrate's Court at Machakos
- ELC Case No. 751 of 2017
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules 2010; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthenge v Mulwa & 3 others (Environment and Land Miscellaneous Application E057 of 2025) [2025] KEELC 5710 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5710/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.