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ELCAllowedSiakago ELC Case No. E021 of 2021 (application dated 03/12/2025)· [2026] KEELC 2605 (KLR)

Muthama & 3 others v Ngari (Miscellaneous Application E037 of 2025) [2026] KEELC 2605 (KLR)

Environment and Land Court of Kenya
30 April 2026
ECE.C Cherono
2,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Embu Land Court allowed a family extra time to appeal and paused their eviction, provided they deposit Kshs. 100,000 as security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (E.C Cherono, ELC Judge) on a Notice of Motion dated 03/12/2025 in which the Applicants sought enlargement of time to file a Memorandum of Appeal out of time against the judgment in Siakago ELC Case No. E021 of 2021 delivered on 23/10/2025, and a stay of execution of that judgment pending the intended appeal. The Applicants, led by Alice Nzilani Muthama who claims beneficial ownership and occupation of Mbeere/Wachoro/1151 since the 1980s, explained that judgment was delivered virtually in the absence of their advocate and that they learned of it on 28/11/2025, instructing new counsel who filed the application promptly. The Respondent, the registered proprietor, opposed, arguing lack of diligence, absence of documentary proof of the alleged late notification, a draft memorandum raising only generalized grounds, and failure to offer security. The court framed two issues: sufficient cause for extension of time and the conditions for stay. Applying the Salat principles, it held that a delay of about twelve days was not inordinate and that the draft memorandum raised arguable issues, justifying enlargement of time. On stay, it found that eviction from a homestead occupied for over 40 years may occasion substantial loss, that the application was brought without unreasonable delay, and that the court could impose security of Kshs. 100,000 on its own motion. The application was allowed with costs abiding the appeal.

Key legal issues

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01

Extension of time to file an appeal out of time under Section 79G of the Civil Procedure Act

Holding

The Applicants established sufficient cause; a delay of about twelve days was not inordinate and the draft memorandum raised arguable issues.

Reasoning

The court applied the Salat principles: extension is discretionary, the applicant bears the burden, and the court considers the length of and reason for delay, arguability of the appeal and prejudice. Judgment was delivered virtually in the absence of the Applicants' advocate; they learned of it on 28/11/2025 and filed promptly. Documentary corroboration was lacking, but the delay was short and the draft memorandum of appeal raised arguable issues.

p. 5
02

Stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The conditions for stay were satisfied: substantial loss, no unreasonable delay; security imposed by the court notwithstanding the Applicants had not offered it.

Reasoning

The court held that eviction from a homestead occupied for over 40 years may occasion substantial loss if the appeal succeeds, so the subject matter should be preserved. The application was filed shortly after the Applicants learned of the judgment, so delay was not unreasonable. Although the Applicants did not offer security, the court held it has discretion to impose security and conditioned the stay on a deposit of Kshs. 100,000.

p. 5

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis for it.
  • A short delay of about twelve days is not inordinate where the applicant explains learning of the judgment late and acts promptly thereafter.
  • Eviction from property claimed to have been occupied for over 40 years may occasion substantial loss warranting stay pending appeal.

Court orders

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  1. 1.The Applicants are granted leave to file their Memorandum of Appeal out of time against the judgment delivered on 23/10/2025
  2. 2.The Applicants shall file and serve their Memorandum of Appeal within fourteen (14) days from the date of the ruling, failing which the leave granted shall automatically lapse
  3. 3.There shall be an order of stay of execution of the judgment delivered on 23/10/2025 pending the hearing and determination of the intended appeal
  4. 4.The order of stay is conditional on the Applicants depositing security of Kshs. 100,000 in court or in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days, failing which the order of stay shall automatically lapse
  5. 5.Costs of the application shall abide the outcome of the appeal
On appeal from
Magistrate's Court at Siakago (ELC)
ELC Case No. E021 of 2021
Jurisdiction invoked
Section 79G of the Civil Procedure Act (admission of appeal out of time) and Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Muthama & 3 others v Ngari (Miscellaneous Application E037 of 2025) [2026] KEELC 2605 (KLR)", Case Analysis (2026). Siakago ELC Case No. E021 of 2021 (application dated 03/12/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2605/eng@2026-04-30

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