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ELCDismissedMalindi ELC Miscellaneous Application (application dated April 1, 2025)· [2025] KEELC 6973 (KLR)

Kioko t/a Kioko Enteprises v Cannobio t/a Kilifi Complex Centre & another (Environment and Land Case E020 of 2025) [2025] KEELC 6973 (KLR)

Environment and Land Court
9 October 2025
EME. K. Makori
1,767 words in judgment
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The bottom line

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The Environment and Land Court in Malindi refused to forgive a seven-month appeal delay, ruling that unexplained delay earns no indulgence and costs.

What this practically means

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Executive summary

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The applicant, Reuben Kioko trading as Kioko Enterprises, moved the Environment and Land Court at Malindi by an application dated April 1, 2025 seeking leave to appeal out of time against a ruling of the Kilifi Chief Magistrate's Court delivered on July 23, 2024 in Kilifi Misc. Land Application No. 14B of 2023, together with a stay of that ruling and its consequential orders pending the intended appeal. The trial court had dismissed the applicant's application of May 17, 2023 for want of jurisdiction because he had not complied with Section 14 of the Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301, which requires a BPRT order to be adopted as a judgment or decree before enforcement. The 1st respondent opposed, pointing out that the applicant participated in the subsequent party-and-party bill of costs by September 27, 2024, demonstrating awareness of the ruling. The court framed three issues: extension of time, stay of execution, and costs. Applying the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat and Odunga J's guidance in Dilpack Kenya Limited, the court found the approximately seven-month delay unexplained and the assertion that former advocates failed to communicate the ruling unsubstantiated. The court concluded the application was an attempt to evade paying assessed costs of Kshs 142,000 and that the intended appeal was an abuse of process, the issues having already been addressed elsewhere. The application was dismissed with costs on October 9, 2025.

Key legal issues

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01

Whether the applicant satisfied the criteria for extension of time to file an appeal out of time

Holding

The application failed; the applicant offered no plausible explanation for the roughly seven-month delay and the claim of non-communication by former advocates was unsubstantiated

Reasoning

The ruling was delivered on July 23, 2024 and the appeal ought to have been filed by August 23, 2024 under Section 79(g) of the Civil Procedure Act. The applicant only filed on April 1, 2025. His explanation - that former advocates did not inform him of the ruling - was contradicted by his participation in the bill of costs proceedings by September 27, 2024, and no supporting correspondence was produced. Following Salat and Dilpack, discretion was withheld.

p. 4
02

Whether a stay of execution should issue pending the intended appeal

Holding

Refused; the intended appeal had no merit and appeared to be an abuse of the court process motivated by a desire to avoid paying taxed costs

Reasoning

The court found the application was filed to avoid paying assessed costs of Kshs 142,000. Further, the substantive issues had already been litigated: the applicant had separately filed Kilifi CM Misc Application No. E001 of 2024 in which the BPRT order was adopted as a decree, and Njoroge J had ruled on April 2, 2025 in Malindi ELC Misc E040 of 2024 involving the same parties and subject matter. The intended appeal therefore served no purpose.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, requiring reasonable and satisfactorily explained delay
  • Where there is no explanation for non-compliance, there shall be no indulgence; the burden lies on the party seeking the discretion

Court orders

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  1. 1.The application dated April 1, 2025 is dismissed with costs

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels, and Catering Establishments) Act, Cap 301, Laws of KenyaSection 14
  • Landlord and Tenant (Shops, Hotels, Catering Establishments) Act, Cap 301, Laws of KenyaSection 4
  • Civil Procedure ActSection 79(g)

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    [2014] eKLR
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Ratman v Cumarasamy
    [1964] 3 All ER 933
  • Savill v Southend Health Authority
    [1995] 1 WLR 1254
  • Pietro Cannobbio v Reuben Kioko Enterprises (Malindi ELC Misc E040 of 2024)
On appeal from
Kilifi Chief Magistrate's Court
Kilifi Misc. Land Application No. 14B of 2023
Jurisdiction invoked
Section 79(g) of the Civil Procedure Act (appeal from subordinate court to the High Court; extension of time jurisdiction)

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, "Kioko t/a Kioko Enteprises v Cannobio t/a Kilifi Complex Centre & another (Environment and Land Case E020 of 2025) [2025] KEELC 6973 (KLR)", Case Analysis (2025). Malindi ELC Miscellaneous Application (application dated April 1, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6973/eng@2025-10-09

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