Gacheru v Dibogo & another (Environment and Land Appeal E027 of 2024) [2026] KEELC 1116 (KLR)
The bottom line
#A Siaya High Court gave a delayed litigant 14 days to file an appeal and stopped construction on the disputed land, but she still pays the legal costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of over one year in filing the intended appeal was excusable
The court found the Applicant's illness and non-supply of certified documents to constitute sufficient cause under Section 79G of the Civil Procedure Act.
The court applied the Supreme Court's Salat factors on extension of time. The Applicant filed a letter from Rangala Mission Hospital dated 29th July 2024 evidencing health challenges during the relevant period, and attributed the delay to non-supply of typed proceedings. The court held that no one chooses to fall ill, that the court has a human face, and that the Applicant had afforded an excusable explanation for the delay despite the Respondent's argument that the delay was inordinate and the application an afterthought.
Whether the Applicant satisfied the Order 42 Rule 6(2) requirements for stay of execution pending appeal
The court found substantial loss lay in the Respondent's ongoing construction on the suit property, which needed to be stopped to preserve the status quo and avoid rendering the intended appeal nugatory.
The court restated the Order 42 Rule 6(2) requirements: substantial loss, application without unreasonable delay, and security. Citing James Wangalwa & Another v Agnes Naliaka Cheseto, it noted execution alone is not substantial loss, but found here that the Respondent's ongoing development of South Ugenya/Rangala/1245 would alter the position on the ground. It directed maintenance of status quo to preserve the suit property so the appeal, if successful, would not be rendered nugatory.
Legal principles established
#- Extension of time is an equitable, discretionary remedy available only to a deserving party who explains the delay and shows no prejudice to the respondent.
- The mere fact that execution has been put in motion does not amount to substantial loss under Order 42 Rule 6.
- In balancing the right to enjoy the fruits of a judgment against the right of appeal, the court will choose the lesser risk and accord the intended appeal an opportunity to be ventilated.
Court orders
#- 1.An order for maintenance of status quo stopping any further construction/developments on parcel Number South Ugenya/Rangala/1245.
- 2.Leave granted to the Applicant to file an appeal against the judgment of Hon. L. N. Sarapai (PM) in MCELC 4 of 2019 delivered on 29th May, 2023.
- 3.The appeal to be filed within 14 days of the ruling, failing which the orders shall automatically be discharged.
- 4.Costs of the application awarded to the Respondent.
- On appeal from
- Magistrates' Court (trial court, Siaya)
- MCELC 4 of 2019
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (extension of time to appeal); Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gacheru v Dibogo & another (Environment and Land Appeal E027 of 2024) [2026] KEELC 1116 (KLR)", Case Analysis (2026). null - not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1116/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.