Kinaiya & 2 others (Suing as Personal Representatives of Joseph Sein, Deceased) v Elesondai & 2 others (Environment and Land Case E019 of 2021) [2026] KEELC 2304 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the appellants were denied an opportunity to file submissions and were condemned unheard
No denial was proved; the burden of proof under sections 107 and 108 of the Evidence Act was not discharged and no prejudice was established
The appellants alleged they could not file submissions because the court file was unavailable and the magistrate was on leave. They produced no correspondence with the registry, no draft submissions, and no evidence that the magistrate was on leave for the relevant period. Submissions merely aid the court and are not evidence, so their absence caused no proven prejudice.
Whether the trial magistrate had jurisdiction to extend time to file an appeal
She had no such jurisdiction; section 79G of the Civil Procedure Act vests that power in the appellate court alone
Time for filing an appeal from a subordinate court to the Environment and Land Court is strictly governed by section 79G, which allows a 30-day statutory period with extension only by the appellate body. The magistrate therefore lacked jurisdiction to grant extension of time and indeed did not consider that issue.
Whether the trial magistrate erred in refusing stay of execution pending appeal
No error; the Order 42 rule 6(2) conditions (substantial loss, no unreasonable delay, security) were not met
The magistrate considered the unexplained delay in filing the application, the failure to prove substantial loss, and the absence of security offered. The appellate court, applying the principle that discretion will not be disturbed unless exercised unjudiciously, found itself unable to fault those findings and agreed the stay threshold was not met.
Whether the ruling was marred by contradictions and inconsistencies
No contradictions were identified; the allegation was not substantiated in submissions and the court could not discern any
Although pleaded as a ground of appeal, counsel for the appellants did not point out any contradictions or inconsistencies in the ruling when making submissions. The court, on its own reading of the ruling, was likewise unable to decipher any. The ground therefore failed for want of substantiation.
Legal principles established
#- Submissions are meant to aid the court and are not evidence; failure to file submissions absent proven prejudice does not vitiate a ruling
- Power to admit an appeal out of time under section 79G of the Civil Procedure Act lies with the appellate court, not the subordinate court
- An appellate court will not interfere with the exercise of discretion by a lower court unless it was not exercised judiciously
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the Respondents
- On appeal from
- Chief Magistrate's Court, Kajiado (CMELC No 44 of 2018, ruling by Hon I Kahuya)
- Kajiado CMELC No 44 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over a subordinate court interlocutory ruling (appeal on an application for leave to appeal out of time, stay of execution and setting aside of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinaiya & 2 others (Suing as Personal Representatives of Joseph Sein, Deceased) v Elesondai & 2 others (Environment and Land Case E019 of 2021) [2026] KEELC 2304 (KLR)", Case Analysis (2026). Kajiado Environment and Land Court Appeal (from Kajiado CMELC No 44 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2304/eng@2026-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.