Njiriri & another (Suing as their capacity as the administrators of the Estate of Wanjeri Njiriri - Deceased) v Njoroge (Environment and Land Miscellaneous Case E016 of 2025) (Environment and Land) [2026] KEELC 913 (KLR)
The bottom line
#A Kenyan court refused to extend time for a late land appeal because the applicants filed no draft appeal and offered no security for stay.
What this practically means
#Executive summary
#Key legal issues
#Extension of time under Section 79G of the Civil Procedure Act
Refused - no draft Memorandum of Appeal was annexed, so the applicants sought leave to file a non-existent appeal
Applying Salat and Gerald M'limbine v Joseph Kangangi, the court held that extension of time is an equitable, discretionary remedy requiring the applicant to lay a basis. The application spoke only of an intended appeal with no Memorandum annexed. Under the proviso to Section 79G an intending appellant must file the appeal and simultaneously seek leave to admit it out of time; seeking leave to admit a non-existent appeal is an abuse of process.
Substantial loss under Order 42 Rule 6(2)(a)
Not established - the Respondent has been in occupation of the suit land since 2007, so execution will not render the appeal nugatory
Relying on Kenya Shell Limited v Benjamin Karuga Kibiru, the court held substantial loss must be demonstrated. Without a draft Memorandum of Appeal the court could not find an arguable appeal. From the impugned judgment, the Respondent purchased the land in January 2007 and has been in occupation since; refusing stay therefore occasions no prejudice to the Applicants.
Undue delay
The application was filed without undue delay, as the Applicants acted promptly upon discovering the judgment
The court accepted the Applicants' explanation that no notice of delivery of the judgment was issued on the delivery date, and that they filed the application as soon as they became aware of the judgment. This limb of the stay conditions was satisfied.
Security for due performance of the decree
Not satisfied - no security was offered or pledged
Order 42 Rule 6(2)(b) mandatorily requires the applicant to furnish security for the due performance of the decree. The security is not meant to punish the judgment debtor. The Applicants did not pledge readiness to furnish such security, disqualifying them from a stay.
Legal principles established
#- An application for extension of time under the proviso to Section 79G must be accompanied by a filed appeal or draft Memorandum of Appeal; leave cannot be sought to admit a non-existent appeal
- Substantial loss is the cornerstone for granting a stay of execution and must be evidenced, not merely asserted
- Furnishing security for due performance of the decree is a mandatory condition for stay under Order 42 Rule 6(2)(b)
Court orders
#- 1.The Application dated 3rd October 2025 is dismissed
- 2.Costs of the application awarded to the Respondent
- On appeal from
- Naivasha Chief Magistrate's Court
- Naivasha MCELC E021 of 2020
- Jurisdiction invoked
- Sections 63, 79G, 3A & 1B of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njiriri & another (Suing as their capacity as the administrators of the Estate of Wanjeri Njiriri - Deceased) v Njoroge (Environment and Land Miscellaneous Case E016 of 2025) (Environment and Land) [2026] KEELC 913 (KLR)", Case Analysis (2026). Notice of Motion Application dated 3rd October 2025 (Naivasha MCELC E021 of 2020, appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/913/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.