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ELCDismissedKilgoris MCELC/E003/2023 (application dated 19th August 2025)· [2025] KEELC 8667 (KLR)

Oldenyati v Lekokei & 3 others (Environment and Land Miscellaneous Case E017 of 2025) [2025] KEELC 8667 (KLR)

Environment and Land Court
15 December 2025
MMM.N Mwanyale
1,406 words in judgment
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The bottom line

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The Environment and Land Court at Kilgoris refused to extend time for an appeal, finding the applicant knew of the judgment and delayed without explanation.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kilgoris (M.N Mwanyale, J) determined an application dated 19th August 2025 seeking extension of time to file an appeal and stay of execution from a judgment delivered on 20th December 2024 in Kilgoris MCELC/E003/2023. The Applicant, through Messrs T.O Nyangosi and Co. Advocates, blamed her previous counsel's failure to communicate the outcome for the delay, asserting her appeal had overwhelming chances of success. The 2nd to 4th Respondents opposed, arguing the firm was a stranger to the proceedings without leave under Order 9 Rule 9 of the Civil Procedure Rules, the application was filed about 7-8 months late, and the Applicant was aware of the judgment, having reported the 1st Respondent to police for obtaining money by false pretences and having vacated the suit property in April 2025 after being given alternative land. The court framed four issues: whether the application was defective as filed by a stranger, whether it was merited, what reliefs should issue, and costs. Relying on Tobias M. Wafubwa v Ben Butali, the court held that an appeal is a new proceeding, so Order 9 Rule 9 leave was unnecessary. Applying the Leo Silla Mutiso principles on extension of time, the court found the delay unexplained, the Applicant aware of the judgment, indolent, and the application an afterthought, with slim chances of success and no prejudice. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the application filed by a firm not on record in the trial court was defective under Order 9 Rule 9

Holding

Not defective; appellate proceedings are new proceedings and Order 9 Rule 9 does not apply

Reasoning

Relying on Tobias M. Wafubwa v Ben Butali, the court held that an appeal commences new proceedings in another court, so a party may engage new counsel on appeal without a Notice of Change of Advocates or leave under Order 9 Rule 9. The filing firm was therefore not a stranger to the appellate proceedings.

p. 3
02

Whether extension of time to appeal should be granted

Holding

Refused; applicant was aware of the judgment and delay unexplained

Reasoning

Applying the Leo Silla Mutiso principles, the court found an approximately 8-month delay unexplained: the applicant had reported the 1st Respondent to police in April 2025 for obtaining money by false pretences, showing awareness of the outcome, and had vacated the suit property pursuant to the judgment. The application was an afterthought, chances of success slim, and no prejudice shown.

p. 3

Legal principles established

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  • Principles for enlargement of time: length of delay, reason for delay, chances of appeal succeeding, and degree of prejudice to the respondent
  • Order 9 Rule 9 leave requirement does not apply to appellate proceedings, as an appeal is a new proceeding

Court orders

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  1. 1.The application dated 19th August 2025 is dismissed
  2. 2.Extension of time to file the appeal is declined
  3. 3.Stay of execution is declined
  4. 4.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (2)

  • Tobias M. Wafubwa Vs. Ben Butali
    2017 (eKLR)
  • Leo Silla Mutiso vs. Rose Hellen Wangari
    Nairobi Civil Application 255/1997
On appeal from
Environment and Land Court, Kilgoris
MCELC/E003/2023
Jurisdiction invoked
Inherent jurisdiction to enlarge time under the Civil Procedure Rules; application for extension of time to appeal and stay of execution

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, "Oldenyati v Lekokei & 3 others (Environment and Land Miscellaneous Case E017 of 2025) [2025] KEELC 8667 (KLR)", Case Analysis (2025). Kilgoris MCELC/E003/2023 (application dated 19th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8667/eng@2025-12-15

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