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ELCDismissedNotice of Motion dated 7th February 2025 (arising from Siaya C.M.E.L.C No. E040 of 2023)· [2025] KEELC 8494 (KLR)

Okoth & another v Wamaua (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 8494 (KLR)

High Court of Kenya, Siaya
4 December 2025
1,173 words in judgment
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The bottom line

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The High Court in Siaya refused to excuse a nine-month delay in filing an appeal because the applicants explained it only in submissions, not sworn evidence.

What this practically means

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Executive summary

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The applicants, who were defendants in Siaya C.M.E.L.C No. E040 of 2023 before Hon. L. Simiyu (SPM), brought a Notice of Motion dated 7th February 2025 seeking leave to appeal out of time against the judgment delivered on 15th May 2024, together with stays of taxation, execution and of the trial proceedings pending appeal. They deponed that they filed a defence but the matter proceeded to hearing and judgment without their being served or notified, and that they could not appeal without leave. The application, brought under section 79G of the Civil Procedure Act, was unopposed despite service and was canvassed by written submissions. The court identified the single issue as whether the applicants had met the threshold for the orders sought. Relying on the Supreme Court's principles in Nicholas Kiptoo Arap Korir Salat v IEBC, the judge considered whether there was good and sufficient cause for the delay. The appeal was due within 30 days of 15th May 2024, yet the application was filed in February 2025 - a delay of approximately nine months. The applicants merely asserted an arguable appeal and did not depone to when they discovered the judgment; their explanation, that they lost track of the suit trusting their counsel, was advanced only in submissions, which cannot replace evidence. The court found the delay inordinate and the applicants indolent, citing authority that a litigant must diligently follow up their case with their advocate. Having declined to extend time, the court declined to consider the stay prayers. The application was dismissed with each party bearing their own costs, and leave to appeal the ruling was granted if required.

Key legal issues

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01

Whether the applicants made out good and sufficient cause for filing the appeal out of time under section 79G of the Civil Procedure Act

Holding

No - the delay of approximately 9 months was not explained on oath and was inordinate

Reasoning

The appeal was due within 30 days of the judgment delivered on 15th May 2024, but the application was filed in February 2025. The applicants merely asserted they had an arguable appeal and did not depone to when they discovered the judgment. Explanations advanced only in submissions, that they lost track of the suit trusting their counsel, could not be considered since submissions are not evidence.

p. 3
02

Whether the court should exercise its discretion to enlarge time

Holding

The discretion was declined because the applicants were indolent and the delay inordinate

Reasoning

The power under section 79G is discretionary and must be exercised judiciously. Applying the Salat principles, the delay should be explained to the satisfaction of the court. Here the applicants were silent on their whereabouts for nine months, and even considering the unsworn explanation there was no good or sufficient cause. An indolent party must bear the consequences of inaction.

p. 3

Legal principles established

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  • An appeal from a subordinate court to the High Court shall be filed within 30 days, but may be admitted out of time on good and sufficient cause shown
  • The discretion to enlarge time under section 79G must be exercised judiciously, applying the Salat criteria including explanation of the delay, prejudice and undue delay
  • Submissions do not take the place of evidence
  • An indolent litigant must reckon with the consequences of inaction and must follow up how their case is being handled by their advocate

Court orders

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  1. 1.The application dated 7th February 2025 is dismissed
  2. 2.Parties to bear their own costs
  3. 3.Leave to appeal this decision is granted if required
On appeal from
Siaya Chief Magistrate's Court (Environment and Land)
C.M.E.L.C No. E040 of 2023
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Sections 1A, 1B & 3A of the Civil Procedure Act

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, "Okoth & another v Wamaua (Environment and Land Miscellaneous Application E004 of 2025) [2025] KEELC 8494 (KLR)", Case Analysis (2025). Notice of Motion dated 7th February 2025 (arising from Siaya C.M.E.L.C No. E040 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8494/eng@2025-12-04

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