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ELCDismissedNot stated in the judgment provided· [2026] KEELC 5082 (KLR)

Merie v Gakuya & 3 others (Environment and Land Case E129 of 2021) [2026] KEELC 5082 (KLR)

High Court of Kenya
4 August 2026
2,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st defendant/applicant moved the court by notice of motion dated 19th January 2026 under Sections 1A, 1B, 3A and 75 of the Civil Procedure Act and Orders 42, 43 and 51 of the Civil Procedure Rules, seeking stay of proceedings and leave to lodge an appeal out of time against a ruling delivered on 18th November 2025 in which the court overruled his objection to the production of nine letters from Mae Properties Limited. He objected that the documents were tendered by the plaintiff, a mere recipient, without calling their maker, and that they were neither originals nor certified copies, contrary to Sections 35, 67 and 68 of the Evidence Act. He attributed the delay in seeking leave to his counsel's emergency surgery and one-month bedrest from 16th December 2025. The plaintiff opposed, citing the applicant's chronic non-attendance and record of adjournments over five years and the prejudice of further delay. The court applied Order 42 Rule 6(1), the criteria in William Odhiambo Ramogi and the Global Tours & Travels discretion on stay of proceedings, and the Salat principles on extension of time. It found no pending appeal demonstrated before a higher court, noted the policy favouring stay applications in the appellate court, and found no notice of appeal or draft appeal exhibited. The notice of motion was dismissed with costs to the plaintiff, and the matter was set for further mention on 3rd November 2026 to fix a hearing date.

Key legal issues

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01

Whether stay of proceedings should be granted pending the intended appeal

Holding

Stay of proceedings was refused because the applicant failed to demonstrate a pending appeal before a higher court and did not meet the criteria for stay

Reasoning

Applying Order 42 Rule 6(1) and the criteria in William Odhiambo Ramogi and Global Tours & Travels, the court found the first limb unsatisfied: no pending appeal before the Court of Appeal was demonstrated. The policy favours stay applications being made in the appellate court. Given the suit's long pendency, the court exercised its discretion to decline stay in favour of expeditious disposal.

p. 4
02

Whether leave to appeal out of time should be granted

Holding

Leave to appeal out of time was refused as the applicant neither showed a notice of appeal nor a draft appeal, and delay and prejudice weighed against extension

Reasoning

Applying the Salat principles, extension of time is discretionary and equitable; the applicant bears the burden of explaining delay. Counsel's illness was said to explain the delay, but the applicant produced no notice of appeal or draft appeal. The court also considered the prejudice to the plaintiff from further delayed hearing of the long-pending suit and found no merit in the application.

p. 5

Legal principles established

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  • Stay of proceedings has a high threshold and the applicant must demonstrate an appeal pending before a higher court, an arguable appeal, and expeditious application
  • Whether to grant a stay of proceedings is a judicial discretion to be exercised in the interest of justice, weighing expeditious disposal, arguability of the intended appeal and expedition of the application
  • Extension of time is an equitable remedy, not a right, and the applicant must lay a basis for the delay to the satisfaction of the court

Court orders

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  1. 1.The notice of motion dated 19th January 2026 is dismissed with costs to the plaintiff/respondent
  2. 2.Further mention on 3rd November 2026 to fix a date for hearing
Jurisdiction invoked
Sections 1A, 1B, 3A and 75 of the Civil Procedure Act and Order 42 Rule 6, Order 43 Rule 1(2) and (3) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Merie v Gakuya & 3 others (Environment and Land Case E129 of 2021) [2026] KEELC 5082 (KLR)", Case Analysis (2026). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5082/eng@2026-08-04

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