Kosen v Ole Kosen & another (Environment and Land Appeal 18 of 2019) [2026] KEELC 3486 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to extend time for filing a Notice of Appeal
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.
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.
Sufficient cause for extension of time and deeming the Notice of Appeal properly filed
Sufficient cause was established: judgment was delivered without notice, the delay after discovery was not inordinate, and the intended appeal was not frivolous.
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.
Conditions for stay of execution pending appeal under Order 42 Rule 6
All conditions met: delay satisfactorily explained, substantial loss shown, and status quo preservation serving as adequate security.
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.
Costs
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.
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.
Legal principles established
#- 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
#- 1.Leave granted extending/enlarging time for filing the Notice of Appeal against the judgment delivered on 9th October 2025
- 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.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.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.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.