Mugo (Legal Representative of James Mugo Kiragu, Deceased) & another v Nderi & another (Environment and Land Miscellaneous Application E028 of 2025) [2026] KEELC 3129 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether good and sufficient cause was established for extension of time under Section 79G
Despite an unsatisfactory explanation for counsel's inadvertence, the delay of slightly under one month was not inordinate and the Applicants moved promptly on discovery; extension granted.
The Court weighed the Chemwolo principle that counsel's mistakes should not be visited on litigants against the Waruhiu principle that litigants must follow up their cases. The Applicants lacked documentary evidence of diligent follow-up, but the delay was short, the appeal was not frivolous, and they acted with promptitude upon discovery. Balancing all factors, the discretion was exercised in their favour.
Whether conditions for stay of execution under Order 42 Rule 6(2) were satisfied
Substantial loss was demonstrated (risk of irreversible demolition), the application was brought without unreasonable delay, and security could be imposed by condition; conditional stay granted.
The lower court's judgment directed removal of structures, so execution carried a real risk of physical alteration of the suit properties, rendering any successful appeal largely academic. The Respondent's right to the fruits of his judgment was protected through a security deposit and timelines for expeditious prosecution of the appeal, guided by the Butt principle of balancing competing rights.
Costs of the application
Although successful, the Applicants were ordered to pay the Respondent's costs of the application.
Under Section 27 of the Civil Procedure Act costs follow the event unless the court orders otherwise for good cause. Here, the good cause was the Applicants' own delay in filing the appeal in time, which necessitated the application.
Legal principles established
#- Extension of time is an equitable remedy, not a right, granted on a case-by-case basis considering length and reason of delay, prejudice and interests of justice (per the Supreme Court in Salat).
- The three conditions for stay of execution under Order 42 Rule 6(2) are conjunctive, and the cornerstone of the jurisdiction is substantial loss.
- Demolition of permanent structures pending appeal constitutes a form of substantial loss that is not easily reversible.
Court orders
#- 1.Leave granted to the Applicants to file and serve an appeal out of time against the judgment delivered on 11th September 2025 in Kerugoya CMCC No. 176 of 2014
- 2.Memorandum of Appeal to be filed and served within fourteen (14) days
- 3.Record of Appeal to be filed and served within sixty (60) days
- 4.Conditional stay of execution of the judgment and decree in Kerugoya CMCC No. 176 of 2014 pending the hearing and determination of the appeal
- 5.Applicants to deposit Kshs.200,000 as security for the due performance of the decree in an interest-earning bank account in the joint names of the parties' counsel or with the court within thirty (30) days, failing which the stay lapses automatically
- 6.Applicants to pay the Respondent's costs of the application
- On appeal from
- Kerugoya Chief Magistrate's Court (subordinate court)
- CMCC No. 176 of 2014
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (extension of time) and Order 42 Rule 6 of the Civil Procedure Rules (stay of execution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo (Legal Representative of James Mugo Kiragu, Deceased) & another v Nderi & another (Environment and Land Miscellaneous Application E028 of 2025) [2026] KEELC 3129 (KLR)", Case Analysis (2026). Notice of Motion dated 23rd October 2025 (Kerugoya CMCC No. 176 of 2014, appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3129/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.