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ELCPartially AllowedELC Misc. Application (Kilgoris) – extension of time application re ELC MISC E001 OF 2025 Kilgoris· [2025] KEELC 8642 (KLR)

Cheruiyot v Ngeno & 5 others (Environment and Land Case E006 of 2023) [2025] KEELC 8642 (KLR)

Environment and Land Court
9 December 2025
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court granted a seven-month-late legal challenge only on strict conditions: pay costs and file within seven days, or lose everything.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kilgoris (M.N. Mwanyale, J) determined an application by Hon. Zakayo Cheruiyot seeking leave to file a second reference out of time against the ruling of Deputy Registrar Hon. Cyprian W. Waswa dated 6th February 2025 on the certificate of taxation of a party and party bill of costs, together with a stay of execution of that ruling, the certificate of costs dated 20th February 2025 and all consequential orders, including warrants of arrest. The applicant's first reference (ELC MISC E001 OF 2025 Kilgoris) had been struck out on 26th July 2025 for being filed out of time. The applicant argued he was not indolent, that his advocates failed to file the reference in time, that the taxed amounts were excessive, and that the taxing master gave no reasons. The respondent opposed, asserting lawful execution, a 7-month inordinate delay, and that the reasons issue had been settled in the first reference. Applying the Leo Sila Mutiso principles, the court found the applicant indolent, his explanation implausible, and the absence-of-reasons ground res judicata in substance, having been determined in the ruling on the first reference. Notwithstanding failure of the first two conditions, the court found the intended reference arguable and no prejudice beyond delay to the respondent, and allowed the application conditionally: payment of Kshs 350,000/= of the taxed costs within 7 days, leave to file the reference within 7 days failing which the leave lapses, lapse of interim stay on default, and costs of the application to the respondents in any event.

Key legal issues

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01

Whether the applicant met the principles for enlargement of time

Holding

The court found the applicant indolent, gave no valid reasons for the 7-month delay and thus failed the first two Leo Sila Mutiso conditions, yet nonetheless exercised discretion in his favour based on the last two conditions, granting conditional relief.

Reasoning

The impugned ruling was delivered on 6th February 2025 and the application was filed on 22nd September 2025, seven months late. The first reference had been struck out for being filed out of time, so the applicant knew of the need to act timeously. The explanation that he was not informed was implausible. The claim that no reasons were issued for taxation had already been settled against him in the ruling on the first reference (paragraphs 15 to 18). Only the arguability of the intended reference and lack of prejudice to the respondent weighed in his favour, and the court allowed the application on conditions.

p. 4
02

Whether the impugned ruling contained reasons for the taxation

Holding

That issue had already been determined in the ruling on the first reference, which found the impugned ruling contained reasons; the applicant could not relitigate it.

Reasoning

The ruling on the first reference (annexture ZC2, paragraphs 15 to 18) found that the Deputy Registrar's ruling of 6th February 2025 contained reasons for the taxation. That determination bound the parties in this application, so the applicant could not rely on the alleged absence of reasons as the ground for the delay. Consequently, the applicant was left without any reasonable explanation for the seven-month delay in seeking enlargement of time.

p. 4

Legal principles established

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  • The decision whether or not to extend time for filing a reference/appeal is discretionary, considering the length of the delay, the reason for the delay, the chances of success, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The Applicant shall pay Kshs 350,000/= of the taxed costs to the Respondents within 7 days
  2. 2.The Applicant is granted leave to file the reference within 7 days from today, failure to which the leave lapses
  3. 3.In default of any of the above conditions, the interim stay of execution orders shall lapse
  4. 4.Costs of the application are awarded to the Respondents in any event

Authorities

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Cases cited (6)

  • Paul Gacheru T/A Paul Gacheru and Co. Advocates vs Kargua Construction Limited
    null
  • Mumias Sugar V Tom Ojienda
    null
  • Kiptoo Tito and Kiara vs Deposit Protection Fund Board
    null
  • Ahmed Nassir vs NBK Limited
    null
  • Mungu n 2 others vs Nyinge
    null
  • Leo Silla Mutiso vs. Rose Hellen Wangari
    Nairobi Civil Application 255/1997
On appeal from
null
null
Jurisdiction invoked
Inherent discretion to enlarge time under the applicable procedural rules (reference against a Deputy Registrar's certificate of taxation)

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, "Cheruiyot v Ngeno & 5 others (Environment and Land Case E006 of 2023) [2025] KEELC 8642 (KLR)", Case Analysis (2025). ELC Misc. Application (Kilgoris) – extension of time application re ELC MISC E001 OF 2025 Kilgoris. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8642/eng@2025-12-09

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