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ELCAllowedNot stated in the ruling (intended appeal from Mwingi CM ELC No. 17 of 2018)

Matenzawa v Kandau (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 1906 (KLR)

Environment and Land Court
19 February 2026
2,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A 104-year-old woman won permission to appeal her eviction late, after showing illness and delayed court documents caused the delay.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitui (A. Kaniaru, J) determined a Notice of Motion dated 23/4/2025 by Kavivi Matenzawa seeking leave to file an appeal out of time against the judgment of the Magistrate's Court at Mwingi in CM ELC No. 17 of 2018 delivered on 27/8/2024, together with a stay of execution of that judgment and decree. In the lower court, the respondent John Mutua Kandau had successfully sought the applicant's eviction from land parcel Mwingi/Nzawa/323, proving ownership by title deed, while the applicant failed to prove her claim. The applicant explained the delay in filing her appeal by pointing to a letter of 29/8/2024 requesting proceedings, the supply of judgment outside the appeal period, her advanced age (born in 1920), and illness requiring hospitalization shortly after judgment, supported by treatment notes. The respondent disputed illness and delay, alleging the application was an afterthought. The court reviewed the applicable principles on extension of time from the Supreme Court in Mwambora v Spire Properties, Thuita Mwangi and Edith Koine, and on stay of execution from Order 42 Rule 6, RWW v EKW and Absalom Dova. Finding the applicant credible and the delay reasonably explained, the court allowed the application in terms of prayers 2, 3, 4 and 5: leave to appeal out of time, stay of execution pending appeal, the draft memorandum deemed duly filed, and costs in the cause. Security for costs for the stay was deferred to the next date, with an interim stay applying without security in the meantime.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has demonstrated merits justifying leave to file an appeal out of time
  2. 2.Whether an order of stay of execution of the lower court judgment and decree pending appeal should issue

Key legal issues

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01

Extension of time to file an appeal

Holding

The applicant gave reasonable grounds for the delay: proceedings and judgment were supplied outside the appeal period and she fell ill and was hospitalized shortly after judgment; at her advanced age the delay was not blameworthy.

Reasoning

The court applied the Supreme Court's factors in Mwambora v Spire Properties: extension of time is discretionary and requires a reasonable, satisfactorily explained delay and absence of prejudice. The record contained a letter of 29/8/2024 requesting proceedings, treatment notes showing illness after judgment, and an ID showing she was born in 1920. On balance the court found her credible and the delay excusable.

p. 5
02

Stay of execution pending appeal

Holding

Stay was granted under Order 42 Rule 6 because the application was brought without unreasonable delay and substantial loss (possible eviction and exhumation of bodies) was shown, with security for costs to be fixed on the next date.

Reasoning

Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay, and security. The court balanced the appellant's right of appeal against the decree holder's fruits of judgment, as required by the authorities cited, and ordered an interim stay without security until security is determined inter partes.

p. 5

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay and showing absence of prejudice.
  • Whether delay is unreasonable depends on the circumstances of each case.

Court orders

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  1. 1.Leave granted to the applicant to file an appeal out of time (prayer 2)
  2. 2.Stay of execution of the judgment delivered on 27/8/2024 and the decree pending hearing and determination of the appeal (prayer 3)
  3. 3.The draft Memorandum of Appeal filed herewith deemed as an appeal duly filed (prayer 4)
  4. 4.Costs of the application to be in the cause (prayer 5)
  5. 5.Security for costs for the stay to be fixed on the next date after hearing both sides; interim stay to apply without payment of security until then

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrate's Court, Mwingi
CM ELC No. 17 of 2018
Jurisdiction invoked
Order 42 Rules 1, 2 and 6, Order 50, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 3, 3A, 1A and 1B of the Civil Procedure Act (Cap 21)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore allow the application herein in terms of prayers 2, 3,4, and 5.
p. 5disposition - extension of time and stay granted
From now up to the next date, the order of stay will apply without the payment of security for costs.
p. 5interim stay pending fixation of security
Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court.
p. 3principles governing extension of time
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory.
p. 4purpose of stay of execution pending appeal
the court is persuaded that on balance, the applicant is telling the truth.
p. 5credibility finding on illness and delay

Issues in the judgment

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minor

Internal date inconsistency on the judgment sought to be stayed: the prayer cites 27/8/2025 while the ruling elsewhere records the lower court judgment as delivered on 27/8/2024.

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, "Matenzawa v Kandau (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 1906 (KLR)", Case Analysis (2026). Not stated in the ruling (intended appeal from Mwingi CM ELC No. 17 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19

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