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ELCDismissedNotice of Motion Application dated 3rd October 2025 (Naivasha MCELC E021 of 2020, appeal)· [2026] KEELC 913 (KLR)

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)

Environment and Land Court
19 February 2026
4,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a Notice of Motion dated 3rd October 2025 filed by Veronica Wahu Njiriri, Githinji Njiriri and their advocate Dominic Njuguna Mbigi, seeking a stay of execution of a judgment of the Naivasha Chief Magistrate's Court delivered on 31st July 2025 in Naivasha MCELC E021 of 2020 (Veronica Njiriri and Githinji Njiriri v Simon Kiruri Njoroge), and leave to appeal out of time. The Applicants deponed that the judgment was delivered without notice and backdated to 31st July 2025, being discovered on 1st October 2025 through registry checks; the statutory appeal period had lapsed. The Respondent opposed, contending the application was time-barred, indolent, brought in contempt of the judgment, and failed the Order 42 Rule 6 conditions, since CTS notification constituted sufficient notice. Written submissions were filed by both sides. M.C. Oundo J framed two issues: extension of time and stay of execution. On extension, applying Salat and Gerald M'limbine v Joseph Kangangi, the court held that an intending appellant must file the appeal and simultaneously seek leave; as no draft Memorandum of Appeal was annexed, the Applicants sought leave to file a non-existent appeal, and this limb failed. On stay, applying Kenya Shell v Kibiru, the court found no demonstrated substantial loss: without a draft memorandum the court could not find an arguable appeal, and the Respondent had purchased the land in January 2007 and been in occupation since, so execution would not render the appeal nugatory. Although the court accepted the application was filed without undue delay, the mandatory condition of security was not met. The application was dismissed with costs to the Respondent, judgment delivered at Naivasha via Microsoft Teams on 19th February 2026.

Key legal issues

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01

Extension of time under Section 79G of the Civil Procedure Act

Holding

Refused - no draft Memorandum of Appeal was annexed, so the applicants sought leave to file a non-existent appeal

Reasoning

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.

p. 7
02

Substantial loss under Order 42 Rule 6(2)(a)

Holding

Not established - the Respondent has been in occupation of the suit land since 2007, so execution will not render the appeal nugatory

Reasoning

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.

p. 8
03

Undue delay

Holding

The application was filed without undue delay, as the Applicants acted promptly upon discovering the judgment

Reasoning

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.

p. 8
04

Security for due performance of the decree

Holding

Not satisfied - no security was offered or pledged

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Application dated 3rd October 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 63
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure Rules ActSections 63, 79G, 3A & 1B

Cases cited (9)

  • James Ndungu Muchugi v Joyce Nduta Muchugi & 9 Others
    [2012] KECA 14 (KLR)
  • Mutiso Vs. Mwangi
    (1999) EA 23
  • University Council of Technical University of Mombasa v Kenya Union of Domestic, Hotels, Education Institution and Hospital Workers
    [2024] KECA 555 (KLR)
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] KECA 94 (KLR)
  • Bi-Mach Engineers v James Kahoro Mwangi
    [2011] eKLR
  • Hadkinson v Hadkinson
    [1952] All ER 567
  • Econet Wireless Kenya Ltd v Minister for Information
    [2005] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others
    [2014] eKLR
  • Gerald M’limbine v Joseph Kangangi
    [2009] eKLR
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

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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, "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.