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ELCPartially AllowedNotice of Motion dated 13th May 2025· [2025] KEELC 7574 (KLR)

Abdikarim v Mohamed & another (Environment and Land Appeal E033 of 2025) [2025] KEELC 7574 (KLR)

Environment and Land Court
5 November 2025
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Mombasa (S. M. Kibunja, J) on a Notice of Motion dated 13th May 2025 by Abdiwahab Abdikarim, the applicant, seeking leave for a new advocate to come on record post-judgment, extension of time to lodge an appeal (or deemed filing of an already-filed appeal), and stay of execution of a decree for demolition of his structures and eviction from suit property. The decree arose from a trial judgment delivered by Hon. Maureen Nabibya, SPM on 17th March 2022 in a land dispute over MOMBASA/MS/BLOCK V/550 & 551. The 1st respondent opposed, arguing the trial judgment was not a default one, the application was brought after over three years' undue delay, and the applicant had not followed up on his case. The court framed three issues: extension of time, stay of execution, and costs. Applying the Salat principles, the court found the applicant indolent and his explanation for the three-year delay insufficient, but nevertheless exercised discretion to extend time because the dispute concerns land, an emotive issue. Applying Jaber Mohsen Ali v Priscillah Boit, the court refused stay of execution, finding unreasonable delay and no particularized substantial loss, noting the respondent was entitled to the fruits of his judgment. Leave was granted for Edwin Yose & Co. Advocates to come on record, the court finding the previous firm did not deem itself the applicant's advocate. Costs were ordered to abide the outcome of the appeal. The application was partially allowed.

Key legal issues

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01

Extension of time to file an appeal out of time under section 79G of the Civil Procedure Act

Holding

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.

Reasoning

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.

p. 3
02

Stay of execution pending appeal under Order 42 Rule 6

Holding

Stay was refused because the application was brought with unreasonable delay and the applicant failed to demonstrate substantial loss.

Reasoning

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.

03

Leave for a new advocate to come on record post-judgment under Order 9 Rule 9

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The firm of Edwin Yose & Company Advocates is granted leave to come on record for the applicant/intended appellant.
  2. 2.The time for filing an appeal is extended by fourteen (14) days from the date of the ruling.
  3. 3.The record of appeal be filed and served in thirty (30) days from the date of the ruling.
  4. 4.The prayer for stay of execution pending hearing and determination of the appeal is rejected.
  5. 5.The costs of the application to abide the outcome of the appeal.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (4)

  • Salat versus Independent Electoral and Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
  • Jaber Mohsen Ali & Another versus Priscillah Boit & Another
    [2014] KEELC 132 (KLR)
  • Reliance Bank vs Norlake Investments Ltd
    (2002) 1 EA 227
  • Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others
    [2018] eKLR
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

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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, "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.