Abdikarim v Mohamed & another (Environment and Land Appeal E033 of 2025) [2025] KEELC 7574 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Extension of time to file an appeal out of time under section 79G of the Civil Procedure Act
Despite finding the applicant indolent and his explanation for the over three-year delay insufficient, the court in its discretion allowed extension of time because the dispute is over land, an emotive issue.
The court applied the Salat principles: extension of time is discretionary, not a right, and the applicant must explain the delay. The applicant's explanation that his counsel failed him did not sufficiently account for three years of inaction, and any reasonable person would have followed up or sought another advocate. However, the court invoked the emotive nature of land disputes as a basis to exercise discretion in favour of extension, balancing the need to have the dispute determined on merit.
Stay of execution pending appeal under Order 42 Rule 6
Stay was refused because the application was brought with unreasonable delay and the applicant failed to demonstrate substantial loss.
Applying Jaber Mohsen Ali v Priscillah Boit, the court found the applicant did not particularize the substantial loss beyond the fear of eviction and demolition of temporary structures. The respondent, as a successful litigant, is entitled to the fruits of his judgment, and there was no evidence he could not compensate the applicant if the appeal succeeded.
Leave for a new advocate to come on record post-judgment under Order 9 Rule 9
Leave was granted because the applicant's former firm did not deem itself as his advocate after judgment, so the mischief of changing advocates behind an advocate's back did not arise.
The court perused the trial record and found the defendants' advocates absent from proceedings after 3rd March 2020, with the defendants themselves not attending court or exhibiting any enquiries made. Given the breakdown in communication and that the firm did not consider itself the 1st defendant's advocate, leave for the new firm to come on record was warranted, applying Lalchand Fulchand Shah.
Legal principles established
#- Extension of time is an equitable remedy granted at the court's discretion and the applicant bears the burden of explaining the delay.
- Stay of execution pending appeal requires demonstration of substantial loss, application without unreasonable delay, and security for due performance of the decree.
- Order 9 Rule 9 is not intended to lock out a litigant who was previously unrepresented from instructing an advocate after judgment without leave.
Court orders
#- 1.The firm of Edwin Yose & Company Advocates is granted leave to come on record for the applicant/intended appellant.
- 2.The time for filing an appeal is extended by fourteen (14) days from the date of the ruling.
- 3.The record of appeal be filed and served in thirty (30) days from the date of the ruling.
- 4.The prayer for stay of execution pending hearing and determination of the appeal is rejected.
- 5.The costs of the application to abide the outcome of the appeal.
- On appeal from
- Chief Magistrate's Court
- not stated
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (Chapter 21, Laws of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdikarim v Mohamed & another (Environment and Land Appeal E033 of 2025) [2025] KEELC 7574 (KLR)", Case Analysis (2025). Notice of Motion dated 13th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7574/eng@2025-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.