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ELCDismissedELCL MISC NO. E008 OF 2025

Faith Njeri Ndungu & 3 others v Lydia Wangechi Mutegi & another

Environment and Land Court of Kenya
23 September 2026
SKS. M. Kibunja
3,743 words in judgment
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The bottom line

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The Environment and Land Court in Kerugoya refused to let four family members appeal a land case out of time because they could not explain the delay.

What this practically means

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Executive summary

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The four applicants sought leave under Section 79G of the Civil Procedure Act to file an appeal out of time against the judgment in Kerugoya CMCC ELC No. 159 of 2019 (delivered 2024), together with temporary stay of execution pending the intended appeal. They attributed the delay to the late upload of the judgment, the 1st applicant's father-in-law's hip fracture, hospitalisation and death, the 2nd applicant's chronic myeloid leukaemia, the heart condition of the 4th applicant, and financial hardship of the farming applicants. The respondents opposed, arguing the new firm of advocates was not properly on record under Order 9 Rules 5 and 9, the delay was unexplained and inordinate, and the decree had already been executed with the suit properties reverting to the parties' late mother. The court framed three issues: propriety of the counsel on record, merit of the application, and costs. Relying principally on the Court of Appeal decision in Tobias M. Wafubwa v Ben Butali, it held that a miscellaneous application, like an appeal, is a new process, so Order 9 Rule 9 did not apply and the incoming firm was properly on record. Applying the Supreme Court's Salat guidelines and Misoi v Muhindi, it found unexplained gaps in the period of delay, that the 2nd applicant's illness predated the suit, and that the impecunious applicants had not resorted to Order 44 pauper appeals. The application was dismissed with each party bearing their own costs, the court noting the parties' familial relationship.

Questions the Court framed

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

  1. 1.Whether the application has been filed through a counsel improperly on record
  2. 2.Whether the application merited
  3. 3.Who pays the costs

Key legal issues

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01

Whether new counsel needed leave under Order 9 Rule 9 to come on record

Holding

A miscellaneous application is a new, self-contained process; Order 9 Rule 9 does not apply and the incoming firm is properly on record

Reasoning

The court applied the Court of Appeal decision in Tobias M. Wafubwa v Ben Butali, holding that once judgment is entered an appeal is a commencement of new proceedings, not a continuation of the lower-court matter, so parties may choose counsel freely without a notice of change or leave. Persuasive ELC and High Court decisions to the same effect were noted.

p. 12
02

Whether the delay in filing the appeal was excusable

Holding

The delay was not sufficiently explained; the application failed

Reasoning

The court found unexplained gaps between judgment delivery on 8th August 2024 and the filing of the first application on 20th February 2025. The father-in-law's fracture in November 2024 and death in December 2024 did not cover the earlier period; the 2nd applicant's illness predated the suit; and the 3rd and 4th applicants did not use the pauper appeal regime under Order 44.

p. 17

Legal principles established

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  • Order 9 Rule 9 of the Civil Procedure Rules does not apply to fresh suits, miscellaneous applications or appeals; parties are free to choose counsel at that stage without leave
  • Extension of time is an equitable remedy, not a right, and the whole period of delay must be reasonably explained to the court's satisfaction

Court orders

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  1. 1.The applicants' application dated 1st April 2025 is without merit and is dismissed
  2. 2.Each party shall bear their own costs

The bench

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

SK
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Kerugoya
Kerugoya CMCC ELC No. 159 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (application for leave to file appeal out of time)

Relief refused

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Leave to file appeal out of time

The explanations tendered for the delay were not plausible; unexplained gaps between judgment delivery and filing of the application

p. 17

Temporary stay of execution pending the intended appeal

Could only be considered if the primary prayer for leave succeeded; decree has been executed and titles reverted

p. 18

Costs

Each party shall bear their own costs.

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.

That the applicants' application dated 1 st April 2025 is without merit, and is dismissed.
p. 19Final orders - dismissal
That each party shall bear their own costs.
p. 19Costs order
I take the view that the firm of Mbugua Waihiga & Company advocates is properly on record for the applicants, and that the provision of Order 9 Rule 9 of the Civil Procedure Rules does not apply to fresh suits or appeals, unlike processes in the same matter and court post judgement.
p. 13Order 9 Rule 9 inapplicable to fresh proceedings
The explanations tendered by the applicants for the delay to file the appeal do not appear plausible.
p. 17Unexplained delay

Issues in the judgment

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material

Judgment delivery date inconsistently given as April 2024 and August 2024

minor

Typographical error in year of upload

material

First extension application date conflict: withdrawn 24th March 2023 versus filed 20th February 2025

minor

Ruling dated and delivered 23rd September 2026, over a year after a 2025 miscellaneous filing

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, "Faith Njeri Ndungu & 3 others v Lydia Wangechi Mutegi & another", Case Analysis (2026). ELCL MISC NO. E008 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5550/eng@2026-09-23

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