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ELCDismissedNot stated in the judgment (Petition dated 23rd October 2019, amended 28th January 2022)· [2026] KEELC 4601 (KLR)

Kimani v County Executive Member-Lands, Housing, Physical Planning and Urbanization & another (Environment and Land Petition 4 of 2019) [2026] KEELC 4601 (KLR)

Environment and Land Court of Kenya
2 July 2026
2,136 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (E. K. Makori, Judge) determined an application dated 24th May 2024 by the Respondents in the underlying petition, who sought leave to appeal out of time from the judgment and decree of 19th October 2023, and a stay of execution of that judgment pending the intended appeal. The underlying judgment, delivered by Olola J, had declared violations of the Petitioner's constitutional rights under Articles 47 and 40, nullified a letter of 4th October 2019 suspending the Petitioner's approved development plan, issued a permanent injunction, and awarded special damages of Kshs. 1,576,820 and general damages of Kshs. 2,000,000. The Applicants, who were absent when judgment was delivered and were served with a copy on 14th November 2023, took no steps for about seven to eight months. The Respondent opposed the application, arguing the delay was inordinate and unexplained, that no draft Memorandum of Appeal was annexed, and that the application was an afterthought to delay execution, relying on the Salat and Paul Musili Wambua decisions. The court applied the extension-of-time principles in Salat and Leo Sila Mutiso, alongside Rule 61 of the Court of Appeal Rules and Section 7 of the Appellate Jurisdiction Act. It found the delay inordinate and unexplained, noted the absence of a draft Memorandum of Appeal, and held that the threshold for extension of time was not met. The application was dismissed with costs.

Key legal issues

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01

Whether the delay of approximately eight months in seeking leave to appeal out of time was satisfactorily explained

Holding

The delay was inordinate and unexplained; the Applicants were aware of the judgment date, were served with a copy on 14th November 2023, yet filed the application months later without a draft Memorandum of Appeal

Reasoning

The court traced the delivery of judgment on 19th October 2023 after parties were notified, noted service of the judgment and demand letter on 14th November 2023, and found the Applicants took no steps for about seven to eight months. The only explanation offered was absence when judgment was delivered, which the court found insufficient against the Salat and Leo Sila Mutiso principles.

p. 5
02

Whether the intended appeal was arguable

Holding

The Applicants did not attach a draft Memorandum of Appeal, so the court could not assess arguability of the intended appeal

Reasoning

The court noted the absence of a draft Memorandum of Appeal annexed to the application, which would have enabled it to assess whether the intended appeal was arguable. The Respondent had also argued that the Applicants never responded to the amended petition or filed submissions, so the decree was unopposed. Without material demonstrating arguability, the extension-of-time threshold was not met.

p. 5

Legal principles established

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  • Extension of time is an equitable, discretionary remedy, not a right; the applicant must lay a basis, explain the delay to the court's satisfaction, and show absence of prejudice and undue delay
  • In deciding whether to extend time, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent

Court orders

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  1. 1.The application dated May 24, 2024 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 61
  • Court of Appeal RulesRule 64(5)(a)
  • Appellate Jurisdiction Act Cap 9Section 7
  • Constitution of KenyaArticles 47 and 40 (underlying judgment declared violated)

Cases cited (4)

  • Nicholas Kiptoo Arap Salat vs. IEBC & 7 others
    [2014] eKLR / Sup Ct. Application 16 of 2014
  • Paul Musili Wambua v Attorney General and 2 others
    [2015] eKLR
  • Leo Sila Mutiso v Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Edith Gichugu Koine vs. Stephen Njagi Thoithi
    [2014] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act Cap 9 and Rule 61 of the Court of Appeal Rules (extension of time to file Notice of Appeal)

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, "Kimani v County Executive Member-Lands, Housing, Physical Planning and Urbanization & another (Environment and Land Petition 4 of 2019) [2026] KEELC 4601 (KLR)", Case Analysis (2026). Not stated in the judgment (Petition dated 23rd October 2019, amended 28th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4601/eng@2026-07-02

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