Ingato v Ingei & another
The bottom line
#A Kenyan landowner who missed her appeal deadline got a second chance because she explained the delay, and the court froze the land pending appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant is entitled to the orders sought in the application dated 2nd April 2026, comprising leave to file appeal out of time, change of advocates, stay of execution and temporary injunction
Key legal issues
#Whether the applicant demonstrated good and sufficient cause for filing the appeal out of time
Yes - the delay was explained by the breakdown in the applicant's relationship with her former advocate over instruction fees, her inability to obtain proceedings, and the demolition of her house; leave was granted subject to a 14-day filing window
The court applied section 79G of the Civil Procedure Act and its proviso, and the Salat discretion principles. The applicant explained the delay through the dispute with her former counsel over Ksh. 300,000 instruction fees, failure to obtain typed proceedings, and her eviction and demolition of her house evidenced by the OB and photographs. Relying on Chemaringo, no delay is fatal if satisfactorily explained. The memorandum of appeal disclosed triable issues including overriding interests and fair hearing.
Whether the applicant's counsel should be allowed to come on record
Yes - granted in the spirit of fair hearing, relying on Musila v Thengi
The court treated the change of advocates as connected to the right to a fair hearing, citing the Court of Appeal's statement that fair hearing entails notifying parties of hearing dates and allowing each party to be heard. Since the applicant's difficulty with her former advocate was part of the explanation for the delay, allowing the new advocate on record served the interests of justice.
Whether stay of execution and injunctive relief should issue
Stay of execution granted; instead of a temporary injunction, preservatory orders of status quo confirmed under section 13(7) of the Environment and Land Court Act
The court noted the injunction jurisdiction under Order 40 Rule 2 of the Civil Procedure Rules and the Giella v Cassman Brown requirements as restated in Nguruman. It also invoked the Supreme Court's Moi High School Kabarak holding on safeguarding the character of the appeal. Rather than granting a temporary injunction in the form sought, the court issued status quo preservation orders barring further subdivision, transfer, sale, charge or disposal of the suit land pending the appeal.
Legal principles established
#- An application for leave to file an appeal out of time is an equitable remedy granted at the court's discretion to a deserving party
- There is no minimum or maximum period of delay provided the delay is satisfactorily explained
Court orders
#- 1.Leave granted to the applicant to file appeal out of time; the prospective appeal to be filed and served within fourteen days failing which the orders lapse
- 2.Zachariah Mulula, Advocate allowed to come on record for the applicant
- 3.Stay of execution issued
- 4.Preservation orders given on 21st May 2026 confirmed pending the outcome of the prospective appeal; no further subdivision, transfer, sale, charge or disposal of Nandi/Koibarak/1079 A
- 5.Costs of the application to abide the outcome of the prospective appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kapsabet (trial court)
- Kapsabet CM ELC Case No. E082 of 2022
- Jurisdiction invoked
- Proviso to section 79G of the Civil Procedure Act (Cap 21) - leave to appeal out of time; section 13(7) Environment and Land Court Act for preservatory orders
Relief refused
#Temporary injunction in the manner sought
The court substituted preservatory orders of status quo under section 13(7) of the Environment and Land Court Act instead of a temporary injunction
Costs
Costs of the application to abide the outcome of the prospective appeal, in light of the proviso to section 27(1) of the Civil Procedure Act and Rai & 3 others vs Rai & 4 others (2014) eKLR
Quotable passages
#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 leave is granted to the applicant to file appeal out of time and the prospective appeal be filed and served within the next fourteen days from this date failure of which these orders shall lapse without further orders being necessary.
That instead of a temporary injunction in the manner sought in this application, the preservation orders given on 21st May 2026 are confirmed pending the outcome of the prospective appeal.
That stay of execution be issued by the Honourable Court.
Costs of the application to abide the outcome of the prospective appeal in light of the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya and the decision in the case of Rai & 3 others vs Rai & 4 others (2014) eKLR on costs.
It is established law that the application for leave to file an appeal out of time acts as an auxiliary door opener to a deserving party. That it is an equitable remedy granted at the discretion of the court
In Andrew Kiplagat Chemaringo –vs- Paul Kipkorir Kibet (2018) eKLR, it was noted that there is no minimum or maximum delay as long as the delay is satisfactorily explained.
Issues in the judgment
#Replying affidavit attributed to wrong party
Statute year citation error
Applicant's submissions dated 17th July 2026 refer to wrong application date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ingato v Ingei & another", Case Analysis (2026). Environment and Land Miscellaneous Case E006 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6041/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.