Munyiva & another v Muema (Suing as next friend to Angeline Mbithe Mbithi) (Land Case Appeal E026 of 2026) [2026] KEELC 4015 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to the firm of Gachoki Muriuki & Associates Advocates to come on record for the Applicants after judgment.
- 2.Whether the Applicants have established sufficient cause to warrant extension of time within which to lodge an appeal against the ruling delivered on 27th January 2026.
- 3.Whether the Applicants have satisfied the conditions for the grant of stay of execution pending appeal.
- 4.Whether the Applicants have established a basis for staying the proceedings before the subordinate court pending the determination of the appeal.
- 5.What orders ought to issue as to costs.
Key legal issues
#Leave to come on record after judgment under Order 9 Rule 9
Leave not strictly required since appellate proceedings are fresh proceedings, but leave allowed as sought
Order 9 Rule 9 governs changes of advocates after judgment, but the Court of Appeal in Tobias M. Wafubwa distinguished post-judgment trial court proceedings from appellate proceedings, holding the latter to be fresh proceedings governed by different rules. The applicants' proceedings in the ELC challenging the subordinate court ruling are separate and distinct, so the procedural requirements of Order 9 Rule 9 are not attracted. Having sought leave, the applicants were granted it.
Extension of time to appeal under section 79G CPA and section 16A ELC Act
Extension granted; good and sufficient cause demonstrated
The discretion is judicial, exercised on sound principles per Salat and County Executive of Kisumu. The delay of about three months was explained by the changeover from FIDA Kenya representation; though undocumented, the explanation was plausible. No specific prejudice to the Respondent was demonstrated beyond ordinary litigation inconvenience, and the interests of justice favoured determination on the merits.
Stay of execution pending appeal under Order 42 Rule 6(2)
Declined; substantial loss not established and security requirement not addressed
The applicants relied only on assertions of execution and possible disposal of the suit property without evidence; exposure to a lawful decree is not substantial loss. Further, the decree flows from a judgment that is not the subject of the intended appeal. The applicants neither proposed nor showed willingness to furnish security, failing the cumulative statutory conditions.
Stay of proceedings before the subordinate court
Declined; no pending proceedings to stay
Applying Khan v International Commercial Company (K) Ltd, stay of proceedings is discretionary, reserved for deserving cases and granted sparingly as it interrupts the right to be heard on the merits and offends Article 159(2)(b). Since the subordinate court proceedings had been concluded with judgment and a ruling, nothing remained capable of being stayed.
Legal principles established
#- Order 9 Rule 9 leave for change of advocates after judgment does not apply to proceedings commenced before an appellate court, which are fresh proceedings rather than a continuation of the trial court proceedings
- Extension of time is an equitable discretionary remedy; the applicant bears the burden of explaining the whole period of delay and showing absence of prejudice
- Substantial loss is the cornerstone of an application for stay of execution under Order 42 Rule 6, and mere exposure to execution of a lawful decree does not constitute substantial loss
- A stay of proceedings is a grave interruption of a party's right to be heard and is granted only sparingly in exceptional circumstances
Court orders
#- 1.Leave allowed for the firm of Gachoki Muriuki & Associates Advocates to come on record for the Applicants
- 2.Leave granted to the Applicants to lodge an appeal out of time against the ruling delivered on 27th January 2026
- 3.Applicants to file and serve the Memorandum of Appeal within fourteen (14) days and the Record of Appeal within thirty (30) days
- 4.In default of compliance, the leave to appeal out of time shall automatically lapse without further order
- 5.Prayer for stay of execution of the decree arising from the judgment delivered on 22nd May 2025 declined
- 6.Prayer for stay of proceedings before the subordinate court declined
- 7.Respondent awarded the costs of the Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kangundo
- MCELC E039 of 2023
- Jurisdiction invoked
- Sections 3, 4(3) and 13 of the Environment and Land Court Act; sections 79G Civil Procedure Act and section 16A Environment and Land Court Act; Order 9 Rule 9, Order 42 Rule 6 and Order 51 Rule 1 Civil Procedure Rules
Relief refused
#Stay of execution of the decree arising from the judgment of 22nd May 2025
Applicants failed to demonstrate substantial loss and failed to address the security requirement under Order 42 Rule 6(2); the decree flows from a judgment not itself appealed
Stay of proceedings before the subordinate court
The proceedings before the subordinate court have been concluded; nothing remains capable of being stayed and the threshold for such an order is exceptionally high
Costs
The Respondent shall have the costs of the Application.
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.
Leave is hereby granted to the Applicants to lodge an appeal out of time against the ruling delivered on 27th January 2026.
The Applicants shall file and serve the Memorandum of Appeal within fourteen (14) days from the date hereof and shall thereafter file and serve the Record of Appeal within thirty (30) days.
In default of compliance with order (c) above, the leave granted in order (b) shall automatically lapse without the necessity of any further order of the Court.
The prayer for stay of execution of the decree arising from the judgment delivered on 22nd May 2025 pending the intended appeal is declined.
The prayer for stay of proceedings before the subordinate court is declined.
the Court deprecates the practice of simultaneously pursuing substantially similar relief before different courts.
Issues in the judgment
#Judgment is dated 2nd July 2026 while the motion is dated 10th May 2026 and refers to an intended appeal; the document header paragraph describes the notice of motion but the case number of the ELC matter itself is not stated anywhere in the judgment
Halsbury's Laws of England is quoted as an authority but is a secondary source not listed in casesCited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyiva & another v Muema (Suing as next friend to Angeline Mbithe Mbithi) (Land Case Appeal E026 of 2026) [2026] KEELC 4015 (KLR)", Case Analysis (2026). Notice of Motion dated 10th May 2026 (appeal from Kangundo CMELC E039 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4015/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.