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ELCDismissedNot stated in the judgment

Nyaga v Mukembo (on Behalf of 21 others as Listed) & 5 others (Environment and Land Judicial Review Miscellaneous Application 3 of 2014) [2026] KEELC 4827 (KLR)

Environment and Land Court
23 July 2026
2,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Embu Environment and Land Court refused to stay a ruling and rejected a bid to appeal nine years late, finding the delay inexcusable.

What this practically means

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Executive summary

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By a Notice of Motion dated 08/08/2025, John Nyaga Kamau sought a stay of execution of a Ruling delivered by the Environment and Land Court at Embu on 09/05/2025, and leave to file an appeal out of time against a Judgment dated 09/06/2016 in a judicial review matter concerning land parcel Mbeere/Mbita/2185. He claimed he was unaware of the 2016 Judgment, was never served with the substantive judicial review motion, and was condemned unheard. The application was opposed by the 1st Applicant (Josphat Nyaga Mukembo), the 2nd - 22nd Applicants (through Charles Njeru Nyaga), and the 1st and 2nd Respondents (the Attorney General), who argued the delay of nearly ten years was inordinate and unexplained, that a similar application to set aside the 2016 Judgment had already been dismissed as the court was functus officio, that the striking-out Ruling was a negative order incapable of being stayed, and that extension of time to appeal to the Court of Appeal lay with that court, not the High Court. The court framed two issues: stay of execution and extension of time. It held the 09/05/2025 Ruling had struck out the Applicant's applications in a concluded judicial review matter, producing a negative order incapable of execution, so the stay prayer failed. It found, however, relying on Kenya Airport Authority v Mutungi, that it had jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time, but applying Leo Sila Mutiso and Salat v IEBC, held the delay of about nine years and three months was inordinate and unsatisfactorily explained. The Notice of Motion was dismissed with costs to the Respondents.

Questions the Court framed

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

  1. 1.Whether the Court should grant a stay of execution of the Ruling delivered by this Court on 09/05/2025 to enable the Applicant file an appeal to the Court of Appeal
  2. 2.Whether the Applicant should be granted leave to file an appeal out of time against the Judgement dated 09/06/2016

Key legal issues

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01

Whether a stay of execution could issue in respect of the Ruling of 09/05/2025

Holding

No stay could issue because the Ruling struck out the Applicant's applications and was a negative order incapable of execution

Reasoning

The Ruling of 09/05/2025 had struck out the Applicant's applications dated 30/09/2020, 19/04/2021, 30/04/2021, 13/01/2023 and 20/07/2023 as irregularly filed in a concluded judicial review matter. Striking-out orders are negative orders incapable of execution; Order 42 Rule 6 stay presupposes an executable decree or order, so the prayer failed.

p. 6
02

Whether this Court has jurisdiction to extend time for filing an appeal to the Court of Appeal

Holding

Yes, the High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act to entertain and determine applications for extension of time

Reasoning

Relying on Kenya Airport Authority v Timothy Nduvi Mutungi, the court held that although extension of time to appeal to the Court of Appeal may be sought in the Court of Appeal, the High Court also has jurisdiction by virtue of section 7 of the Appellate Jurisdiction Act to entertain and determine such an application, so the jurisdictional objection raised by the Respondents did not oust its power.

p. 8
03

Whether the Applicant deserved an extension of time to appeal against the Judgment of 09/06/2016

Holding

No; the delay of about 9 years and 3 months was inordinate and unexplained, and the discretion was not exercised in the Applicant's favour

Reasoning

Applying the Leo Sila Mutiso principles and Salat v IEBC, the court weighed the length of delay, the reason given, the chances of appeal success and prejudice. The Applicant claimed he only learned of the 2016 Judgment after delivery but failed to explain why he did not appeal within a reasonable time after becoming aware; the delay was therefore inordinate and unexcused.

p. 8

Legal principles established

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  • A ruling striking out applications results in a negative order that is incapable of execution and therefore incapable of being stayed.
  • The High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act to entertain and determine an application for extension of time to lodge a notice of appeal.
  • In deciding whether to extend time for appealing 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 Notice of Motion dated 08/08/2025 is dismissed
  2. 2.Costs of the application to the Respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 7 of the Appellate Jurisdiction Act; Order 42 Rule 6 and Order 53 of the Civil Procedure Rules

Relief refused

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Stay of execution of the Ruling delivered on 09/05/2025 pending appeal

The Ruling struck out the Applicant's applications, giving rise to a negative order incapable of execution; there was nothing capable of being stayed

p. 6

Leave to file an appeal out of time against the Judgment dated 09/06/2016

The delay of about 9 years and 3 months was inordinate and not satisfactorily explained

p. 9

Costs

Dismissed with costs to the Respondents

Quotable passages

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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 the circumstances, the impugned ruling gave rise to a negative order incapable of execution. There is therefore nothing capable of being stayed pending the intended appeal.
p. 6Stay of execution - negative orders
I therefore find that this Court has jurisdiction to determine the Applicant's prayer for extension of time.
p. 8Jurisdiction of the High Court over extension of time under section 7 of the Appellate Jurisdiction Act
Consequently, I find that the Notice of Motion dated 08/08/2025 is devoid of merit and the same is hereby dismissed with costs to the Respondents.
p. 9Final orders - dismissal of the application

Issues in the judgment

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minor

The Applicant is referred to inconsistently; a sole Applicant seeks the orders yet the parties include a '1st Applicant' opposing him, and counsel is recorded as appearing for 'the interested Applicant' without that party being defined elsewhere

minor

Date anomalies: a replying affidavit is dated 16/02/2026 and grounds of opposition 23/03/2026 responding to an application dated 08/08/2025 and filed 14/10/2025, while the judgment is dated 23 July 2026

minor

Page numbering anomaly: the final page is marked 'Page 9 of 8'

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, "Nyaga v Mukembo (on Behalf of 21 others as Listed) & 5 others (Environment and Land Judicial Review Miscellaneous Application 3 of 2014) [2026] KEELC 4827 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4827/eng@2026-07-23

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