Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Miscellaneous Application E014 of 2026· [2026] KEELC 5811 (KLR)

Maganga v Nundu (Sued as the legal administrator of the Estate of Charles Nundu Ojunge - Deceased)

Environment and Land Court
21 September 2026
2,173 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed a request to appeal late because the applicant explained only part of the delay and his lawyer, not him, swore the key affidavit.

What this practically means

#

Executive summary

#
The Applicant, Daniel Otieno Maganga, moved the Environment and Land Court at Homa Bay by Notice of Motion dated 10th April 2026 under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 Rules 5 & 6 and Order 51 Rule 1 of the Civil Procedure Rules, seeking leave to file an appeal out of time against the judgment of Hon. Everlyne Onzere (SPM) delivered on 20th January 2026 in Ndhiwa MCELC/E023/2023, plus costs. Counsel's supporting affidavit explained that a memorandum of appeal was prepared on 16th February 2026, but a two-day power outage in Homa Bay and a failure of the Judiciary Case Tracking System to generate an invoice delayed payment until 22nd February 2026, three days past the 30-day deadline. A prior application and appeal (ELC Appeal No. E011 of 2026) were withdrawn on 24th March 2026 upon recognition of a jurisdictional hurdle under Order 42 Rule 6. The Respondent opposed, citing the unexplained initial 26-day delay, unverified outage claims, and a further 21 days of inaction after withdrawal. The court, applying the Salat principles and comparative Ugandan and Malawian authorities, found two fatal defects: only the tail end of the limitation period was explained, and the post-withdrawal delay was inordinate, the cumulative delay exceeding two months without a full and honest explanation. The court further deprecated the practice of counsel swearing affidavits on contentious facts, noting no affidavit from the client. The Notice of Motion was dismissed with costs to the Respondent under Section 27 of the Civil Procedure Act.

Key legal issues

#
01

Whether sufficient cause was shown for extension of time under Section 79G

Holding

No - the delay was not fully and honestly explained; the application was dismissed

Reasoning

Applying Salat and comparative authorities, the court found two fatal defects: the applicant explained only the 4-day period from 17th to 22nd February 2026, offering nothing for the first 26 days after judgment, and after withdrawing the incompetent appeal on 24th March 2026 waited a further 21 days before filing the motion. The cumulative delay of over two months lacked a full and honest explanation, and the respondent's lawful decree should not be kept in suspense.

p. 5
02

Whether an affidavit sworn by counsel on contentious facts can support the application

Holding

No - such practice is irregular; there was no affidavit from the client explaining the facts leading to late filing

Reasoning

The court held that under Kenyan law an advocate is prohibited from swearing supporting or replying affidavits on contentious matters of fact for the client, exposing the advocate to cross-examination on a case handled merely as agent. The court deprecated the practice and warned it would strike out such affidavits in future, finding no affidavit from the client explaining the late filing.

p. 5

Legal principles established

#
  • An explanation covering only the tail end of a limitation period does not amount to sufficient cause for extension of time
  • An advocate is strictly prohibited from swearing a supporting or replying affidavit on contentious matters of fact on behalf of the client

Court orders

#
  1. 1.The Notice of Motion dated 10th April 2026 is dismissed
  2. 2.Costs of the application awarded to the Respondent pursuant to Section 27 of the Civil Procedure Act
On appeal from
Chief Magistrate's Court (Ndhiwa)
Ndhiwa MCELC/E023/2023
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 50 Rules 5 & 6 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maganga v Nundu (Sued as the legal administrator of the Estate of Charles Nundu Ojunge - Deceased)", Case Analysis (2026). Environment and Land Miscellaneous Application E014 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5811/eng@2026-09-21

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