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ELCDismissedNot stated in judgment· [2026] KEELC 1714 (KLR)

Emikala v Board of Trustees Church of God in East Africa Kenya (Mwihila Mission) (Environment and Land Miscellaneous Application E031 of 2025) [2026] KEELC 1714 (KLR)

High Court of Kenya
18 March 2026
1,176 words in judgment
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The bottom line

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The High Court in Kakamega refused to extend time to appeal because the applicant waited seven months and blamed their advocate without proof.

What this practically means

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Executive summary

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By a Notice of Motion dated 22nd April 2025, the applicant sought certification as urgent, leave to file an appeal out of time, and a stay of execution in respect of the ruling of Hon. E. Wasike PM delivered on 24th September 2024 in Butere SPMC ELC No. E006 of 2024, in which a preliminary objection succeeded and his suit was struck out for want of jurisdiction. The applicant blamed his advocate's failure to lodge the appeal, invoking the principle that an advocate's mistake should not be visited on an innocent client. The respondent opposed, asserting inordinate and inexcusable delay, absence of proof of instructions to appeal, and that the underlying suit was res judicata and statute-barred. The court framed a single issue: whether the applicant deserved the orders sought. Noting that the prayer for leave was expressed to be pending determination of the application and was therefore spent, the court considered extension of time under Section 79G of the Civil Procedure Act and applied the Supreme Court's criteria in the Salat case. The ruling was delivered on 24th September 2024 and the application filed on 26th April 2025 — a 7-month delay the court found inordinate. There was no evidence instructions to appeal had been given, and the applicant, whose matter belonged to him, ought not to have taken 7 months to discover the omission given the 30-day filing window. The reason was held not excusable. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant was entitled to extension of time to file an appeal out of time under Section 79G of the Civil Procedure Act

Holding

The application was dismissed; the 7-month delay was inordinate and the explanation (that the advocate failed to file the appeal) was unsupported by evidence and not excusable

Reasoning

The court applied Section 79G, which requires an appeal from a subordinate court to be filed within 30 days, extendable on good and sufficient cause. Relying on the Salat decision, it held that the burden lies on the applicant to lay a basis for extension and explain the delay to the court's satisfaction. The ruling was delivered on 24th September 2024 but the application was filed on 26th April 2025, a 7-month delay. No evidence showed instructions to appeal had been given, and the applicant should not have taken 7 months to discover the omission given the 30-day filing window.

p. 3

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 bears the burden of explaining the delay to the court's satisfaction
  • To obtain leave to appeal out of time, the applicant must explain the reason for delay to the satisfaction of the court

Court orders

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  1. 1.The Notice of Motion dated 22nd April 2025 dismissed
  2. 2.Costs to the respondent
On appeal from
Butere SPMC (Senior Principal Magistrates' Court)
Butere SPMC ELC No. E006 of 2024
Jurisdiction invoked
Section 79G of the Civil Procedure Act

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, "Emikala v Board of Trustees Church of God in East Africa Kenya (Mwihila Mission) (Environment and Land Miscellaneous Application E031 of 2025) [2026] KEELC 1714 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1714/eng@2026-03-18

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