Muhavi v Shiunza (Environment and Land Appeal 064 of 2024) [2025] KEELC 8310 (KLR)

within the 30 day period. That the said appeal was withdrawn because the memorandum of appeal was inadvertently left out at the point of scanning and uploading on the e-filing platform. She confirmed filing this appeal on 9th October 2024. That the application for leave to appeal out of time was filed simultaneously with the application for stay of execution and that both applications are dated 9th October 2024. That the application dated 4/9/2024 was filed in appeal No 52 of 2024 and not in this appeal. That the applications for leave to appeal out of time and for stay of execution were both served on the respondent’s advocate. 4. Both parties filed submissions which this court has duly considered. 5. Having considered the application, response and submissions, the only issue that arise for the court’s determination is whether the orders sought should issue. 6. Section 79 G of the Civil Procedure Act requires that an appeal from the subordinate court to this court be filed in 30 days of the date of the decision appealed against, provided that where there is a good and suficient cause for delay, the appeal may be admitted out of time. 7. The record herein shows that this appeal was filed on 9th October 2024. Simultaneous with the filing of the appeal, the appellant also filed two distinct applications, both dated 9th October 2024. One application sought leave to file appeal out of time while the other application sought stay of execution of the judgment of the subordinate court. The respondent’s argument that stay orders were issued on an application that did not seek stay is misplaced. The orders of 11th October 2024 were properly made in regard to the application seeking stay of execution dated 9th October 2024. That application remains undetermined as the respondent intercepted its course with the instant application. I therefore decline to set aside the said orders which will remain in force pending hearing and determination of the said application for stay of execution dated 9th October 2024. 8. The application for leave to file appeal out of time was filed earlier than the instant application. That application is yet to be heard. This court is enjoined under sections 1A and 1B of the Civil Procedure Act and section 3 of the Environment and Land Court Act to facilitate fair, expeditious, afiordable, and timely justice. Parties and their counsel are obligated to assist the court in attaining the overriding objective. The respondent having filed the application dated 11/11/2024, well aware that the application for leave to appeal out of time had been filed a month earlier, was not in any way assisting the court in attaining the overriding objective. In the premises, I find and hold that the application dated 11th November 2024 was premature and intended to distract the court from attaining the overriding objective. 9. The court will not have facilitated the just, expeditious, proportionate and afiordable justice if it determines the validity of the appeal when the appellant had admitted that the appeal was filed without leave of court but leave was sought. In the premises I dismiss the application dated 11th November 2024. In view of the maze created by the appellant who failed to clarify to court and the respondent’s counsel the fact that he filed two applications dated the same date, but seeking difierent orders, I order that each party shall bear its own costs of the application herein. 10. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 26TH DAY OF NOVEMBER, 2025 A. NYUKURI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8310/eng@2025-11-26 2

page 2 of 3

In the presence of; No appearance for the appellant No appearance for the respondent Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8310/eng@2025-11-26 3

page 3 of 3