Omolo (Suing as the legal representative of the Estate of Charles Omolo Onyango) v tagot & 3 others (Environment and Land Case 228 of 2017) [2026] KEELC 3526 (KLR)
The bottom line
#Kenya's Environment and Land Court let a landowner appeal late after settlement talks collapsed, stopped his eviction, and ruled you cannot restart talks then renege and execute.
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 court has jurisdiction to entertain this application
- 2.whether the applicant's application for leave to extend time to appeal out of time is merited
- 3.whether the prayer for stay of execution pending appeal is merited
- 4.who to bear the costs of the application
Key legal issues
#Whether the ELC has jurisdiction to entertain an application to extend time to appeal from its own judgment
The court held that it has jurisdiction, reading the reference to the High Court in Section 7 of the Appellate Jurisdiction Act to include the Environment and Land Court for matters within its jurisdiction
The court referred to Section 7 of the Appellate Jurisdiction Act which empowers the High Court to extend time for giving notice of intention to appeal. It adopted a plain reading that the reference to the High Court should be read as including the Environment and Land Court where the matter falls within that court's jurisdiction, and so the application was properly before it.
Whether the delay in bringing the application was excusable
The delay was justifiable because the applicant had filed his Notice of Appeal in time and withdrew it only because of negotiations initiated by the Respondent
The court found that the Notice of Appeal was filed within the 30-day period under Section 79 of the Civil Procedure Act. The initial application was brought only three days after withdrawal, though amended months later. Evidence of a part-payment of KShs 500,000/= and the Respondent's counsel's conduct in inviting negotiations on 18th June 2025 persuaded the court that negotiations existed, justifying the delay.
Whether the burden of proving the negotiations lay with the applicant
The applicant bore the burden of proving the negotiations, but once the Respondent asserted the payment was made in good faith for extension of stay, the burden shifted to the Respondent, whose counsel received the money and did not swear an affidavit
Applying Sections 107, 109 and 112 of the Evidence Act, the court held the applicant had to prove the negotiations. However, the Respondent's claim that the KShs 500,000/= was a precondition to extension of stay orders was a fact especially within his knowledge, and his counsel who received the cheque did not depose to the contrary. The court's unanswered questions led it to find in the applicant's favour.
Whether stay of execution pending appeal should be granted
Stay was granted: substantial loss would result since execution against the applicant's family home would render the intended appeal nugatory and not compensable by damages, there was no unreasonable delay, and security was fixed
Applying Order 42 rule 6(2), the court found the suit property was the applicant's family home worth about KShs 24,500,000/=, execution might render the appeal nugatory and damages would not compensate. Delay had been addressed, and the KShs 500,000/= already paid was treated as part performance, with an additional KShs 50,000/= ordered as security for the due performance of the decree.
Legal principles established
#- Where there is no appeal in place and a party has withdrawn a Notice of Appeal in contemplation of negotiations, the proper remedy is leave to file a fresh Notice of Appeal rather than reinstatement of the withdrawn notice
- A party who accepts a part-payment of a decree which the court did not order, and who denies knowledge of the negotiations surrounding it, bears the burden of proving the purpose for which the payment was made
- Inducing a party to withdraw a notice of appeal through negotiations and then reneging to pursue execution is unconscionable and amounts to misrepresentation
Court orders
#- 1.The prayer to file a fresh Notice of Appeal granted; the fresh Notice of Appeal to be lodged and served within the prescribed period
- 2.Stay of execution of the judgment and decree granted pending the intended appeal
- 3.The applicant to deposit KShs 50,000/= in court within thirty (30) days as security for the due performance of the decree, in default the stay to lapse
- 4.Costs of the application awarded to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Cap 9; Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act
Relief refused
#Reinstatement of the Notice of Appeal dated 23rd May 2025 and deemed as duly filed and served
The court found that a withdrawn notice of appeal cannot be reinstated and instead granted leave to file a fresh notice
Costs
Costs of the application awarded to the applicant
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.
In my view, the one Notice of Appeal withdrawn cannot be reinstated. I therefore grant the prayer to file a fresh Notice of Appeal which is to be lodged and served within the prescribed period. I also grant a stay of execution in terms of the conditions stated in paragraph 37 above.
the applicant is to deposit in court the said KShs 50,000/= within the next thirty (30) days as security for the due performance of the decree, in default the stay to lapse.
Such conduct is unconscionable and amounts to undercutting one party and it is a misrepresentation on the part of the Respondent.
Jurisdiction is everything. Without it, a court has no power to make one more step.
I will exercise this discretion and award costs to the applicant.
Issues in the judgment
#The delivery date appears as 08th day of June 2026, which is inconsistent with the record showing the application filed on 17th November 2025 and referred to as decided shortly after; the year 2026 may be a typographical error
The deponent of the supporting affidavit is given as both 'Raymond Ogwe Advocate' and 'Rayment Ogwe, counsel' within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omolo (Suing as the legal representative of the Estate of Charles Omolo Onyango) v tagot & 3 others (Environment and Land Case 228 of 2017) [2026] KEELC 3526 (KLR)", Case Analysis (2026). ELCC NO. 228 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3526/eng@2026-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.