Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMpeketoni ELC Case No. E016 of 2021 (application dated 27th November 2025)

Kabuu v Gacheche (Environment and Land Miscellaneous Case E066 of 2025) [2026] KEELC 3802 (KLR)

Environment and Land Court
18 June 2026
2,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The court refused to extend time to appeal because the applicant waited eight months without explanation, so the judgment holder can now proceed with execution.

What this practically means

#

Executive summary

#
This was a ruling by the Environment and Land Court at Malindi (Mwangi Njoroge, J) on a Notice of Motion dated 27th November 2025 seeking extension of time to file a Notice of Appeal out of time against the judgment and decree of the Principal Magistrates Court at Mpeketoni in Mpeketoni ELC Case No. E016 of 2021 delivered on 12th March 2025, deeming of the Notice of Appeal as properly served, and maintenance of status quo pending appeal. The applicant blamed his erstwhile advocates for the delay, asserting he was shocked physically, economically and mentally by post-judgment proceedings on the file. The respondent opposed, asserting inordinate and unexplained delay of about eight months and prejudice to her enjoyment of the fruits of judgment, execution having commenced via a Notice to Show Cause. The court applied the Salat principles on extension of time, found no proper explanation for the delay, and held that blaming erstwhile advocates who were not present to defend themselves was insufficient. It further held that a Notice of Appeal is not the requisite document for lodging an appeal from the subordinate court to the ELC; only a Memorandum of Appeal is, and none had been lodged or exhibited, so there was no appeal before the court from which arguable grounds could be discerned. It also noted the motion cited no procedural provision. Finding that granting the orders would greatly prejudice the respondent, the court dismissed the application with costs to the respondent on 18th June 2026.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application dated 27th November 2025 is merited (extension of time to file a Notice of Appeal out of time and stay of execution/maintenance of status quo)
  2. 2.Who ought to pay the costs

Key legal issues

#
01

Whether the applicant met the threshold for extension of time to appeal out of time

Holding

The application fails; there was no proper explanation for the delay from March 2025 to November 2025, and blaming erstwhile advocates does not satisfy the Salat principles

Reasoning

Applying the Salat principles as reiterated in Mbarire v Kenya Airways, the court found the applicant bore the burden of explaining the delay. Judgment was delivered on 12 March 2025, instructions to appeal were given on 5 November 2025, and the applicant offered no account of the intervening eight months apart from blaming his former advocates, who were not heard. The plea of mental, physical and economic shock was rejected as no more than filing a Memorandum of Appeal was required.

p. 4
02

Whether a valid appeal or arguable grounds exist before the court

Holding

There is no appeal before the court; only a Notice of Appeal was filed and no draft Memorandum of Appeal exhibited, so arguable grounds cannot be assessed

Reasoning

The court held that an appeal from the subordinate court to the ELC requires a Memorandum of Appeal with grounds lodged within 30 days. Only a Notice of Appeal was filed and none was lodged even at the hearing. The court could not decipher arguable grounds from a mere Notice of Appeal, and distinguished Mwangi v Gachago, where a Memorandum had apparently been lodged. Consequently there was no properly or even improperly filed appeal.

p. 5
03

Whether the stay of execution/status quo orders could be granted

Holding

The stay/status quo prayers fail as they stand or fall with the extension-of-time prayer, and the respondent would be greatly prejudiced

Reasoning

Counsel for the respondent had argued that a stay predicated on extension of time stands or falls with it. The court found extension must be declined, and further that granting the orders would greatly prejudice the respondent who had been waiting to enjoy the fruits of her judgment, execution proceedings having commenced by Notice to Show Cause. The status quo prayer therefore could not be granted.

p. 5
04

Proper foundation of the Notice of Motion

Holding

The Notice of Motion was not brought under any procedural law, so the provisions under which the orders were sought could not be known

Reasoning

As a preliminary point, the court noted that the application cited no statute or rule, despite counsel's reliance on Order 42 Rule 6 in submissions. This procedural deficiency was noted but treated alongside the substantive failures of the application.

p. 4

Legal principles established

#
  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the court's satisfaction
  • An appeal from a subordinate court to the ELC is instituted by lodging a Memorandum of Appeal within 30 days; a Notice of Appeal is superfluous and is not the requisite document
  • Blaming an erstwhile advocate, without more, is not a sufficient or cogent reason to justify extension of time

Court orders

#
  1. 1.The application dated 27th November 2025 is dismissed
  2. 2.Costs of the application to the respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrates Court at Mpeketoni
Mpeketoni ELC Case No. E016 of 2021
Jurisdiction invoked
Inherent discretion to extend time to appeal to the Environment and Land Court from a subordinate court (application not brought under any specified procedural provision)

Relief refused

#

Extension of time to file a Notice of Appeal out of time

Inordinate, unexplained delay of about eight months blamed on erstwhile advocates, and no Memorandum of Appeal lodged or exhibited

p. 4

Deeming of the Notice of Appeal as properly served

A Notice of Appeal is not the requisite document for lodging an appeal from the lower court to the ELC and no arguable grounds could be deciphered from it

p. 4

Order of status quo pending hearing and determination of the appeal

It is a consequence of the failure of the extension-of-time prayer; no valid appeal exists

p. 5

Costs

The application dated 27th November 2025 is 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;
p. 4Discretionary nature of extension of time
The application dated 27th November 2025 lacks merit and it is hereby dismissed with costs to the respondent.
p. 5Final orders/disposition
There is thus not any appeal, even an improperly filed one, before me. There is no draft Memorandum of Appeal exhibited to show the proposed appeal grounds.
p. 5Notice of Appeal is not the instrument for appealing to the ELC
The applicant simply heaps blame on his erstwhile advocates. His erstwhile advocates are not present to defend themselves.
p. 4Advocate negligence as explanation for delay
The consequence of the foregoing findings regarding extension of time to appeal is that the prayer seeking the maintenance of status quo can not be granted.
p. 5Consequential refusal of status quo

Issues in the judgment

#
minor

Judgment states instructions to appeal were given on 5/11/2025 and the court refers to an 8-month inert period, yet also describes a 7-month slumber period alleged by the respondent; the supporting affidavit is undated and application filing dates are inconsistently stated (8th December 2025 in submissions vs 27th November 2025 on the motion)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kabuu v Gacheche (Environment and Land Miscellaneous Case E066 of 2025) [2026] KEELC 3802 (KLR)", Case Analysis (2026). Mpeketoni ELC Case No. E016 of 2021 (application dated 27th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3802/eng@2026-06-18

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