Mwachileo & 5 others v Jabu & 2 others (Miscellaneous Civil Application E019 of 2025) [2026] KEELC 4772 (KLR)
The bottom line
#A Kenyan court allowed a late land appeal because the judgment was uploaded late, but punished the appellants' own delays with costs and strict deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal out of time should be granted
Leave granted: the 67-day delay in uploading the Judgment onto the CTS Portal constituted good and sufficient cause, the application followed within three days of access, the appeal was arguable, and prejudice to the Respondents was ameliorable by conditions and costs
The Court applied the Salat and Leo Sila Mutiso principles: length of delay, reason for delay, arguability and prejudice. It found the trial record showed neither party appeared at delivery; the Respondents' own WhatsApp annexure corroborated that the Judgment was only uploaded on 12th November 2025 upon counsel's prompting; and the Applicants moved within three days. The Applicants' repeated non-attendance was censured but weighed against the systemic delay, Article 159(2)(d) and the overriding objective, with conduct visited through costs.
Whether the Court could grant an injunction pending appeal absent a Memorandum of Appeal on record
Objection rejected as putting the cart before the horse; once leave is granted and the draft Memorandum deemed filed, the pre-condition under Order 42 Rule 6(6) is satisfied in the same omnibus motion
The Respondents relied on authorities holding that no injunction lies where no appeal is on record. The Court distinguished those cases because there the applications were not accompanied by prayers for leave and deeming orders. Requiring two successive applications would be futile circuity and an affront to the overriding objective.
Whether a temporary injunction pending appeal should issue over KWALE/NG'OMBENI/236
Injunction granted restraining alienation only, with status quo of occupation maintained and mutual restraint against waste, conditioned on strict compliance with filing timelines
The appeal being arguable disposed of the prima facie limb. On nugatory aspect, the land was ancestral land occupied to the fourth generation with family graves, not compensable in damages; alienation to third parties would reduce even a successful appeal to a pyrrhic victory. Because the Applicants had been felling trees, restraint against waste was imposed on all parties, and entry by Respondents was not restrained.
Who should bear the costs
Costs awarded to the Respondents in any event despite the Applicants' success, because their own indolence occasioned the application
Applying the principle that costs follow the event under Section 27 of the Civil Procedure Act, the Court held that although the Applicants substantially succeeded, they sought an equitable indulgence occasioned partly by their own laxity in failing to attend the trial Court on four occasions, and it would be unjust to burden the Respondents with costs.
Legal principles established
#- Delayed transmission of a judgment through the CTS Portal is a factor outside the litigants' control and constitutes good and sufficient cause under the proviso to Section 79G of the Civil Procedure Act
- An omnibus motion combining a prayer for leave to appeal out of time with a prayer for injunction pending appeal satisfies the procedural pre-condition in Order 42 Rule 6(6) once the draft Memorandum of Appeal is deemed filed
- An arguable appeal is not one which must succeed, but one which is not frivolous and raises at least a single bona fide point deserving of consideration
- Loss of ancestral land bearing family graves and homes is not readily atoned for in damages
Court orders
#- 1.The Notice of Motion application dated 15th November, 2025 be and is hereby found to be meritorious and hence allowed
- 2.Leave granted to the Appellants/Applicants to file and prosecute their appeal against the Judgment of Hon. L.T. Lewa, Senior Principal Magistrate, delivered on 5th September, 2025 in Kwale Chief Magistrate's Court ELC Case No. E018 of 2020, out of time
- 3.The draft Memorandum of Appeal annexed to the application deemed as duly filed, subject to payment of the requisite Court fees within fourteen (14) days from the date of the Ruling
- 4.The Appellants/Applicants to file and serve the Record of Appeal within sixty (60) days from the date of the Ruling and prosecute the appeal expeditiously
- 5.Temporary injunction issued restraining the Respondents from selling, offering for sale, transferring, leasing, charging, sub-dividing or in any other manner alienating or disposing of Title Number KWALE/NG'OMBENI/236 pending the hearing and determination of the appeal
- 6.Status quo of occupation and user of the suit property obtaining as at the date of the Ruling to be maintained by all parties, and all parties restrained from committing any acts of waste including felling of trees, erection of new structures and cultivation of new areas, pending the appeal
- 7.In default of compliance with the leave and deeming orders, the injunctive and preservatory orders shall lapse automatically without further reference to the Court
- 8.Matter fixed for mention on 12th October, 2026 before ELC No. 1 Kwale for confirming compliance and taking further directions pursuant to Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010
- 9.Costs of the application awarded to the Respondents in any event
- On appeal from
- Chief Magistrate's Court at Kwale
- Land Case No. E018 of 2020
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act, Cap. 21; Section 16A of the Environment and Land Court Act, No. 19 of 2011; Order 42 Rules 6 and 7 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwachileo & 5 others v Jabu & 2 others (Miscellaneous Civil Application E019 of 2025) [2026] KEELC 4772 (KLR)", Case Analysis (2026). ELCLMISC E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4772/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.