Jimmy Kyengo v Kimanthi Mwololo & 4 others
The bottom line
#A Makueni landowner won extra time to appeal, a freeze on execution, and a bar on new land titles while his appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file appeal under Section 79G
Leave granted; delay of about five days was not inordinate, system outage explained the delay, the draft appeal was arguable and no uncompensatable prejudice was shown.
The court applied the Edith Gichugu Koine and Thuita Mwangi guidelines: length and reason for delay, prejudice to the respondent, and arguability. The delay was five days, evidenced by email correspondence with the registry showing a system outage; the memorandum of appeal raised plausible grounds; and prejudice could be compensated by costs.
Stay of execution pending appeal under Order 42 Rule 6(2)
Stay granted; execution had commenced and the Applicant would suffer substantial loss not compensable in damages if the suit land were alienated and titles issued.
Applying Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kibiru, the court found the application made without unreasonable delay, that beacons had been installed and survey/subdivision commenced, and that new titles would occasion severe hardship and render the appeal nugatory.
Injunction/inhibition pending appeal
Granted by way of an order restraining the Land Registrar and County Surveyor from implementing subdivisions, mutations, RIM amendments and issuance of titles pending appeal.
Relying on Venture Capital & Credit Ltd v Consolidated Bank and Section 68(1) of the Land Registration Act, the court held the applications were aimed at preserving the suit properties until the appeal is concluded, satisfying the nugatory test.
Legal principles established
#- An appeal may be admitted out of time where the appellant demonstrates good and sufficient cause for not filing in time, guided by length of delay, reasons for delay, prejudice and arguability.
- Substantial loss is the cornerstone for granting a stay of execution.
- An interlocutory injunction pending appeal preserves the subject matter of the appeal.
Court orders
#- 1.Leave granted to the Applicant to file an appeal out of time against the judgment of the lower court delivered on 12th June, 2025 in Makueni MCELC No. E003 of 2022 within fourteen days
- 2.Pending hearing and determination of the intended appeal, stay of execution of the judgment of the lower court delivered on 12/6/2025 and decree issued on 1st July 2025
- 3.Pending hearing and determination of the intended appeal, an order barring/restraining the Land Registrar Makueni and the County Surveyor Makueni from implementing the subdivisions, mutations, amendment of RIM maps and issuance of titles in the names of the Respondents
- 4.The Applicant shall deposit in court Kshs. 100,000/= as security for the due performance of the eventual decree within Thirty (30) days
- 5.Costs of the two applications to abide the outcome of the intended appeal
- On appeal from
- Magistrates' Court (Makueni)
- MCELC No. E003 of 2022
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules; Section 68(1) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jimmy Kyengo v Kimanthi Mwololo & 4 others", Case Analysis (2026). ELCL MISC APPL. NO. E021 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6290/eng@2026-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.