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ELCDismissedNotice of Motion dated 14th February 2024 (Kakamega ELC)· [2026] KEELC 1129 (KLR)

Olukwo v Khwale & 2 others (Environment and Land Miscellaneous Application E004 of 2024) [2026] KEELC 1129 (KLR)

Environment and Land Court
25 February 2026
ANA. Nyukuri
1,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega dismissed an application to file an appeal over two years late, finding the delay unexplained and dishonest.

What this practically means

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Executive summary

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The applicant filed a Notice of Motion dated 14th February 2024 in the Environment and Land Court at Kakamega seeking leave to file an appeal out of time against the judgment and decree in Mumias Senior Principal Magistrates Court M.E.L.C No. 20 of 2018 delivered on 4th August 2021, together with a stay of execution pending appeal. His suit in the lower court, seeking a declaration that parcel No. E. Wanga/Isongo/2503 belonged to him, rectification of registration and eviction of trespassers, had been dismissed, with the 1st defendant declared owner. He blamed his former advocate and claimed he only learnt of the judgment in late 2023/January 2024 through the area Chief and the court registry. The 1st and 2nd respondents opposed, pointing out his history of litigation over the property, that certified proceedings had been sought by his advocate in December 2021, that a certificate of delay issued in September 2023, and that similar applications (Kakamega ELC MISC E006 of 2023 and E002 of 2024) had been dismissed. The court framed two issues: good and sufficient cause for extension of time, and the threshold for stay of execution. Applying section 79G of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules, and the Supreme Court's Salat principles, the judge found a delay of two years and six months, which was inordinate and unexplained, since the applicant's advocate's letter of 15th December 2021 showed he knew of the judgment by 2021, and his claim of ignorance was not an honest deposition. A prior similar application had been dismissed on 23rd November 2023. The application was dismissed with costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether there is good and sufficient cause to extend time to file appeal out of time

Holding

No - the delay of two years and six months was inordinate and not convincingly explained, and a similar application had already been dismissed

Reasoning

The court applied s.79G CPA and Order 50 Rule 6 CPR and the Salat principles from the Supreme Court. The judgment was delivered on 4th August 2021, but the application was only filed on 19th February 2024. The applicant's advocate had sought certified proceedings by letter dated 15th December 2021, showing awareness of the judgment. The delay between the certificate of delay (27th September 2023) and filing (over four months) was also unexplained. A prior similar application in Kakamega ELC MISC E006 of 2023 was dismissed on 23rd November 2023.

p. 4
02

Whether the applicant met the threshold for stay of execution

Holding

Not determined on merits as the application was dismissed in its entirety

Reasoning

Although framed as an issue, the court disposed of the application on the extension of time limb, finding it lacked merit, and dismissed it with costs without separately analysing the stay criteria of substantial loss.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant must explain the delay to the court's satisfaction

Court orders

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  1. 1.The application dated 14th February 2024 is dismissed
  2. 2.Costs of the application to the 1st and 2nd respondents
On appeal from
Mumias Senior Principal Magistrates Court
M.E.L.C No. 20 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 50 Rule 6 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, "Olukwo v Khwale & 2 others (Environment and Land Miscellaneous Application E004 of 2024) [2026] KEELC 1129 (KLR)", Case Analysis (2026). Notice of Motion dated 14th February 2024 (Kakamega ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1129/eng@2026-02-25

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