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ELCAllowedKitale ELC Appeal No. E032 of 2025· [2026] KEELC 2691 (KLR)

Kipyego v Chepkaitany (Environment and Land Appeal E032 of 2026) [2026] KEELC 2691 (KLR)

Environment and Land Court
6 May 2026
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court let a landowner appeal eight days late and stopped his eviction for one year, but only after he paid Kshs.30,000 as security.

What this practically means

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Executive summary

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The applicant, Haron Biwott, sought leave to appeal out of time against a judgment of the lower court (Chief Magistrate's Court, Kitale) delivered on 8/7/2025, and a stay of execution of the ensuing decree, pending hearing and disposal of his intended appeal. He deponed that he was out of the country when judgment was delivered, and that his advocate filed the memorandum of appeal outside time by eight days without first seeking leave. The dispute arises from land sold by the applicant's father to the respondent, who has obtained eviction orders against the applicant, his mother and siblings. The respondent opposed the application as an afterthought, an abuse of process, and an attempt to cure an incompetent appeal, noting the decree had been served with a notice to vacate. The court, applying section 79G of the Civil Procedure Act and the established criteria from Leo Sila Mutiso and Nicholas Arap Korir Salat (length of delay, reasons, chances of success, and prejudice), found the seven-day delay explained and held that mistakes of counsel should not be visited on an innocent client, the applicant having owned up to the error. On prejudice, the respondent had admitted the decree was yet to be executed. The court deemed the memorandum of appeal dated 14/8/2025 duly filed on time, directed service on the respondent, granted a temporary stay of execution for one year, and required the appellant to deposit Kshs.30,000/= as security for costs within seven days, failing which the stay would lapse.

Key legal issues

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01

Extension of time to file appeal out of time

Holding

The delay of seven days was explained and the applicant's ownership of the mistake justified regularisation

Reasoning

The court applied the Mutiso and Salat criteria: length of delay, reasons for delay, chances of appeal succeeding, and prejudice to the respondent. The delay was only seven days; the applicant explained he was out of the country and counsel filed an incompetent appeal without first seeking leave. Following Francis Murigu Gichuri, mistakes of counsel are not to be visited on an innocent client. The court deemed the memorandum of appeal duly filed on time.

p. 6
02

Stay of execution pending appeal

Holding

Temporary stay granted for one year subject to security

Reasoning

The purpose of a stay is to preserve the substratum of the appeal and avoid it being rendered nugatory; substantial loss must be shown. The applicant gave reasons why eviction would cause irreparable loss, the respondent admitted the decree was yet to be executed, and the eviction notice was due to expire. The court found no prejudice to the respondent if execution was stayed pending appeal, conditioned the stay on a deposit of Kshs.30,000/= security and limited it to one year.

p. 7

Legal principles established

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  • Extension of time to appeal is not a matter of right but an equitable remedy at the court's discretion, granted only where sufficient cause is shown
  • Mistakes of counsel should not be visited upon an innocent client

Court orders

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  1. 1.The Memorandum of Appeal dated 14/8/2025 is deemed duly filed on time and to be served upon the respondent
  2. 2.A temporary stay of execution granted for one (1) year from the date of the ruling
  3. 3.The appellant to deposit Kshs.30,000/= security for costs before the court within 7 days, failing which the stay orders shall lapse
On appeal from
Chief Magistrate's Court (Kitale)
lower court judgment delivered 8/7/2025
Jurisdiction invoked
Section 79G of the Civil Procedure Act (inherent discretion to admit appeal out of time)

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, "Kipyego v Chepkaitany (Environment and Land Appeal E032 of 2026) [2026] KEELC 2691 (KLR)", Case Analysis (2026). Kitale ELC Appeal No. E032 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2691/eng@2026-05-06

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