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ELCAllowedNot stated in the judgment (Environment and Land Court, Narok)· [2026] KEELC 3486 (KLR)

Kosen v Ole Kosen & another (Environment and Land Appeal 18 of 2019) [2026] KEELC 3486 (KLR)

Environment and Land Court of Kenya
4 June 2026
5,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Narok ruled that missing an appeal deadline isn't fatal when judgment was delivered without notice, granting late filers both extension of time and a stay of execution.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Narok (L. Gacheru J) determines a Notice of Motion dated 18th December 2025 by the 1st and 2nd Respondents/Applicants seeking extension of time to file a Notice of Appeal against a judgment delivered by Mohamed Kullow J on 9th October 2025, deeming of the out-of-time Notice of Appeal and related requests for typed proceedings, and stay of execution of that judgment pending an intended appeal to the Court of Appeal. The applicants said the judgment, delivered without notice in the absence of the parties, cancelled the 1st Respondent's title, upheld the Appellant/Respondent's title, and ordered them to vacate the suit property within 90 days failing eviction without further order; they only discovered the judgment by chance on 4th November 2025. The Respondent opposed, contending the court was functus officio and lacked jurisdiction, that only the Court of Appeal could enlarge time under Rule 4, and that the delay was inordinate and no security was offered. The court framed four issues and held it had jurisdiction under section 7 of the Appellate Jurisdiction Act, the ELC being a superior court of equal status with the High Court, and Rule 4 not being an express ouster. It found sufficient cause for extension, holding that no evidence of notice of delivery was adduced and that a party should not be locked out of the appellate process where judgment was delivered without notice. On stay, it found the Order 42 Rule 6 conditions met: delay explained, substantial loss (eviction of long-standing occupiers of land, the substratum of the dispute) demonstrated, and status quo preservation serving as adequate security without monetary security. The application was allowed entirely in terms of prayers 4, 5, 6 and 7, with costs in the cause, though the reasoning earlier indicated each party should bear their own costs.

Key legal issues

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01

Jurisdiction of the ELC to extend time for filing a Notice of Appeal

Holding

The court held it has jurisdiction, concurrent with the Court of Appeal, under section 7 of the Appellate Jurisdiction Act as construed in Edward Njane Nganga.

Reasoning

The Respondent argued functus officio and exclusive jurisdiction in the Court of Appeal under Rule 4. The court held jurisdiction is not determined solely by the Court of Appeal Rules but also by the Appellate Jurisdiction Act. Section 7 expressly empowers the High Court to extend time, and following the Constitution of Kenya 2010 the ELC, as a superior court of equal status, enjoys similar jurisdiction. Rule 4 grants the Court of Appeal a similar discretion but does not expressly oust the ELC's statutory jurisdiction.

p. 9
02

Sufficient cause for extension of time and deeming the Notice of Appeal properly filed

Holding

Sufficient cause was established: judgment was delivered without notice, the delay after discovery was not inordinate, and the intended appeal was not frivolous.

Reasoning

The judgment was delivered on 9th October 2025 in the absence of parties despite an earlier indication that judgment would be delivered on notice. The Respondent produced no evidence that notice of delivery was issued. The applicants discovered the judgment on 4th November 2025 and filed the Notice of Appeal on 18th November 2025 - not an inordinate delay. The intended appeal raised substantial questions of proprietary rights over land, so it was not frivolous.

p. 10
03

Conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

All conditions met: delay satisfactorily explained, substantial loss shown, and status quo preservation serving as adequate security.

Reasoning

The impugned judgment cancelled the 1st Respondent's title, upheld the Respondent's title and ordered vacatur within 90 days failing eviction without further order. The applicants had occupied the land since 2007, and the Respondent had already sought police assistance for eviction. Because land is unique and restoration after eviction and third-party intervention may not be straightforward, eviction would occasion substantial loss and render the appeal nugatory; the balance is struck by preserving the status quo, and no monetary security was necessary since the decree concerns land, not money.

p. 10
04

Costs

Holding

Although the application succeeded, costs were addressed in the interests of justice given the dispute concerns family land and the application arose from delivery of judgment without notice.

Reasoning

The court reasoned that the circumstances giving rise to the application were substantially occasioned by the delivery of judgment without notice and that the dispute concerns family land; in the interests of justice each party should bear their own costs. However, the final orders state that costs be 'in the cause', creating an internal inconsistency in the disposition on costs.

p. 11

Legal principles established

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  • Section 7 of the Appellate Jurisdiction Act empowers the Environment and Land Court, as a superior court of equal status with the High Court, to extend time for filing a Notice of Appeal against its own judgment; Rule 4 of the Court of Appeal Rules does not oust that statutory jurisdiction.
  • Where a court directs that judgment be delivered on notice, parties are entitled to such notice; a party should not be locked out of the appellate process because judgment was delivered without notice and the limitation period lapsed before awareness of the decision.
  • In stay applications concerning proprietary rights over land, preservation of the suit property and the status quo adequately secures both parties, and monetary security need not be ordered.

Court orders

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  1. 1.Leave granted extending/enlarging time for filing the Notice of Appeal against the judgment delivered on 9th October 2025
  2. 2.The Notice of Appeal dated 17th November 2025 and filed on 18th November 2025 deemed properly filed and served, though out of time
  3. 3.The Requests for typed and certified copies of the judgment, decree and proceedings dated 17th November 2025 and filed on 18th November 2025 deemed properly filed and served, though out of time
  4. 4.Stay of execution of the judgment and decree delivered on 9th October 2025 and all consequential orders granted pending the hearing and determination of the intended appeal to the Court of Appeal
  5. 5.Costs in the cause

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 77(2)
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rule 43
  • Appellate Jurisdiction Act (Cap 9)Section 7
  • Civil Procedure RulesOrder 42 Rule 6 (including Rule 6(2)(b))
  • Constitution of Kenya, 2010Generally (equal status of superior courts)

Cases cited (14)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    [2012] eKLR
  • Equity Bank Ltd v West Link Mbo Ltd
    [2013] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2014] eKLR
  • Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Utalii Transport Company Ltd & 3 Others v NIC Bank Ltd & Another
    [2014] eKLR
  • Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another
    [2018] eKLR
  • Republic v Rosemary Wairimu Munene Ex Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd
  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    [2016] eKLR
  • Royal Media Services Limited & 2 others v Attorney General & 8 others
    [2014] eKLR
  • Royal Media Services Limited v Veronica Chepkemboi
    [2015] eKLR
  • Attorney General v Okiya Omtatah Okoiti & Another
    [2019] eKLR
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • RWW v EKW
    [2019] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (Civil Appeal No. 50 of 1989) [1989] KLR 1; [1989] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (the Environment and Land Court being a superior court of equal status with the High Court under the Constitution of Kenya, 2010); Order 42 Rule 6 of the Civil Procedure Rules for stay

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, "Kosen v Ole Kosen & another (Environment and Land Appeal 18 of 2019) [2026] KEELC 3486 (KLR)", Case Analysis (2026). Not stated in the judgment (Environment and Land Court, Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3486/eng@2026-06-04

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