Loyor v Lomer (Environment and Land Miscellaneous Case E002 of 2026) [2026] KEELC 2949 (KLR)
The bottom line
#The Environment and Land Court in Kitale refused a Kenyan litigant's request to appeal late, ruling that six months of unexplained delay and a prior choice of review barred her claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has shown sufficient reasons under Section 79G of the Civil Procedure Act to warrant leave to file and serve an appeal out of time
- 2.Whether the delay of about six months in bringing the application was inordinate and satisfactorily explained
- 3.Whether the respondent would suffer prejudice if the extension were granted
- 4.Whether the application is an abuse of court process given the pending appeal arising from the refusal of review
Key legal issues
#Sufficient reasons for extension of time under Section 79G
The applicant failed to satisfy the court on the cause of and justification for the delay; extension is discretionary and equitable, not a right.
The court restated the Supreme Court principles: extension of time is not a right but an equitable remedy for a deserving party; the applicant bears the burden of laying a basis to the court's satisfaction; the delay must be reasonably explained; and prejudice to the respondent is relevant. The applicant did not explain when she obtained letters of administration or why she chose review instead of appeal.
Whether the delay was inordinate
A delay of six months was inordinate, particularly where the decree had been executed and the respondent had begun construction of a fence.
Following Muya and Karani, the court held that the focus is not merely on the length of delay but on whether the justification is rational and plausible. Here the judgment was delivered on 29/10/2025, review was sought on 27/11/2025 and refused on 16/2/2026, and this application came on 7/4/2026 - about six months after judgment - with no explanation of when the applicant became seized of the letters of administration.
Election between review and appeal, and abuse of process
A party cannot pursue both review and appeal on the same issues; the applicant, having chosen review and having a pending appeal, could not also seek leave to appeal out of time, and her application was an abuse of court process.
Relying on Anthony Gachara Ayub, the court held that opting for an appeal precludes resort to review and vice versa. A pending appeal and stay application on the same issues existed. The court found the applicant was using court process for ulterior motives and to vex the respondent, was estopped from denying facts known to her and her counsel at trial, and that her alleged triable issues were advanced without standing.
Legal principles established
#- Extension of time is an equitable remedy, not a right, available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay.
- A party who opts to pursue an appeal is precluded from resorting to the review route, and vice versa.
- A delay of six months is inordinate, especially where the decree has been executed.
Court orders
#- 1.The application dated 7/4/2026 seeking leave to file and serve an appeal out of time is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (leave to file appeal out of time)
Relief refused
#Leave to file and serve an appeal out of time against the lower court judgment delivered on 29/10/2025
The delay of six months was inordinate, unexplained, and the applicant had already opted for the review route and had a pending appeal; the application was an abuse of process
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
A delay of six months by all standards is inordinate, especially where the decree of the lower court has been executed, and the respondent has moved on to the site and started construction of a fence.
When a party opts to pursue an appeal, he is precluded from resorting to the review route or vice versa
The upshot is that I find the application lacking merit. It is dismissed with costs.
Issues in the judgment
#The judgment does not state the name of the respondent or the case number of the application being determined.
The respondent's grounds of opposition state the application was filed 'for close to 8 months' while the court itself computes the delay as six months.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loyor v Lomer (Environment and Land Miscellaneous Case E002 of 2026) [2026] KEELC 2949 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2949/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.