Matenzawa v Kandau (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 1906 (KLR)

Prayer That the Honourable court be pleased to grant an order staying of execution of the judgement 3: delivered on 27/8/2025 and the decree the subject matter of the intended appeal pending the hearing and determination of the appeal. Prayer That on grant of prayer 2 above, the draft Memorandum of Appeal filed herewith be deemed 4: as an appeal duly filed. 3. Prayer That the costs of the application to be in the cause. 5: Several grounds were advanced as the basis of the application. They include, inter alia, that the respondent filed suit in the lower court against the applicant and the applicant responded by filing a defence and a counter-claim; that the court determined the matter in favour of the respondent; that thereafter, the applicant applied for proceedings and judgement with a view to filing an appeal; that the judgement was supplied on 6/11/2024 which was outside the time allowed for appeal; that the applicant also fell sick and was even admitted to hospital; that it is in the interest of justice and fairness to allow the applicant to file appeal; and finally that the respondent stands to sufier no prejudice if the application is allowed. 4. The application came with a 15 – paragraph supporting afidavit which, in essence, gives a shot at elaboration, confirmation, substantiation, and validation of the grounds advanced in support of the application. 5. The respondent responded via a replying afidavit dated 9/5/2025. In it, the lower court case was acknowledged and the respondent deposed, inter alia, that the surveyor visited the site and thereafter filed a report in court confirming ownership of land parcels No’s. Mwingi/Nzawa/323 and Mwingi/ Nzawa/2225. The respondent owned parcel No. 323 while the applicant owned parcel No. 2225. The lower court then heard the matter and the applicant was said to have been unable to prove how she owned parcel No. 323. The respondent himself was able to prove ownership of the same parcel of land by showing the title deed. 6. The respondent averred that the applicant had not ofiered a good reason for not filing the appeal timeously. 7. The applicant filed a further afidavit after receiving the respondent’s replying afidavit. In it, she averred, inter alia, that the disputed land was registered in the respondent’s name fraudulently as she has always possessed and occupied the land and has a permanent homestead there. The applicant said she disagreed with the surveyor’s report and faulted the lower court for relying on it. She also reiterated that she has been unwell for some time and that contributed to some delay in filing the appeal. Submissions 8. The application was canvassed by way of written submissions. The applicant’s submissions are dated 30/10/2025. In the submissions, the applicant was said to have given good or plausible reasons for not filing appeal on time. She is said to be an old woman battling various chronic and age-related illnesses. She is said to have applied for judgement but the judgement was supplied outside the time allowed for appeal. Further, after the judgement was made available to her, she fell ill. The court was urged to appreciate that the delay in filing the appeal was not intentional on her part. On stay of execution, the applicant submitted that an order of stay is necessary as the respondent has even started executing which might lead to exhumation of bodies buried there and may also cause eviction of the applicant. The cases of Paul Musili Wambua v Attorney General & 2 others [2015] eKLR and Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co. Ltd. [2014] eKLR among others, were profiered to show the various factors that the court should consider in deciding whether to grant the prayers sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19 2

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9. The respondent’s submissions are dated 17/11/2025. The respondent disputed the applicant’s averments that she sought court proceedings and judgement and/or that she fell sick. According to the respondent, “no evidence has been brought to support if she ever fell ill” or whether “there were any instructions sought or issued to appeal the judgement of the trial court.” 10. Further, the appellant’s counsel was said to be present in court when the judgement was delivered and the applicant was accused of taking action only after realizing that execution was imminent. The application under consideration was therefore said to be “an afterthought meant to delay” and deny the respondent’s the fruits of his judgement. 11. Two cases – Nicholas Kiptoo Korir Arap Salat v IEBC & 7 Others [2014] eKLR & Joseph Ngigi v Myovi James & Another [2016] eKLR – were cited to shed light on what the court should consider in making its decision. Analysis & Disposition 12. I have considered the application, the response made to it, the applicant’s further afidavit, rival submissions, and all the other material made available. In my view, the overarching issue is whether the merits of the application have been demonstrated. 13. I think I should first highlight the law. In Mwambora & 9 others v Spire Properties (K) Limited & 50 others (petition (application) 27 (E 031) of 2022 [2023] KESC 12 (KLR) (Civ) (17 February 2023) (Ruling), the Supreme Court (P.M. Mwilu, DCJ & V-P, M. K. Ibrahim, S.C. Wanjala, I. Lenaola & W. Ouko - SC JJ.) considered what is necessary to be considered regarding extension of time to file an appeal. They stated as follows: 14. (a) Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court. (b) A party seeking extension of time had the burden of laying a basis to the satisfaction of the court. (c) Whether or not the court should exercise the discretion to extend time was a consideration to be made on a case-to-case basis. (d) Whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court. (e) Whether there would be any prejudice sufiered by the respondents if the extension was granted. (f) Whether the application had been brought without undue delay. (g) Whether in certain cases, like election petitions, public interest should be a consideration for extending time. The position enunciated by the Supreme Court was actually a re-statement of earlier positions taken by other superior courts. In Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR for instance, the factors to consider were put forward as follows. i. The period of delay. ii. The reason for the delay. iii. The arguability of the appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19 3

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15. iv. The degree of prejudice which could be sufiered by the respondent if the extensions is granted. v. The importance of compliance with time limits to the particular litigation in issue. vi. The efiect, if any, on the administration of justice or public interest if any is involved. Further, in Edith Gichungu Koine v Stephen Njage Thoithi [2014] eKLR, Odek, J.A (as he then was) while referring to the factors for the court to consider, rendered himself as follows: “ Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but not limited to, the period of delay, the degree of prejudice to respondent if the application is granted, and whether the matter raises issues of public interest, amongst others.” 16. Let’s now turn to the law relating to grant of an order of stay of execution. Order 42 Rule 6 (1) entitles a party aggrieved by a decision to make an application for stay of execution before the court that renders the decision or to the court to which an appeal against the decision is preferred. Order 42 (6) (2) then elaborates further as follows: “ (2) 17. No order of stay of execution shall be made under Sub-Rule 1 unless – a. The court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without unreasonable delay; and b. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. In RWW v EKW [2019] eKLR, the court, while considering the issue of stay of execution, pronounced itself as follows: “ The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgement. The court is also called upon to ensure that no party sufiers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the respondent.” 18. And in the case of Absalom Dova v Tarbo Transporters [2013] eKLR the court also stated: “ The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse ofi by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the appellant to his appeal which includes the prospects that the appeal will be rendered nugatory; and the decree holder to the decree which includes the full benefits under the decree. The court, in balancing these two competing rights, focus on their reconciliation.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19 4

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19. It is important to appreciate that whether one is considering the issue of extending time to file an appeal or grant an order for stay of execution pending appeal, it is required that the delay should not be unreasonable. In Jaber Mohsen Ali & Another v Priscillah Boit & Another: E & L No. 2000 of 2012 [2014] eKLR the court observed that what is unreasonable delay is dependent on the circumstances of each case. Even one day could be unreasonable depending on the judgment of the court and any order given thereafter. 20. Of importance also is the need to consider whether granting these two types of orders promotes the overriding objective in civil cases which require that the court should aim at achieving the just, expeditious, proportionate, and afiordable resolution of disputes. 21. Having now highlighted the applicable law, it is now necessary to consider the circumstances prevailing in the case at hand. When the lower court judgement was delivered, the applicant said she requested to be given certified copies of proceedings and judgment. She also said the judgment was supplied outside the time within which an appeal ought to have been filed. The applicant further said that after she got the judgement, she fell ill and had to be hospitalized. The respondent submitted however, that applicant had not proved or demonstrated these allegations. 22. I have looked at the record. The judgement was delivered on 27/8/2024. The supporting afidavit that came with the application has an annexure marked “KM2” which is a letter dated 29/8/2024 that shows the applicant asking for proceedings and judgement. As regards the applicant’s averments relating to illness, the supporting afidavit also came with an annexure “KM3” which comprises of treatment notes. The notes seem to show that the applicant was unwell at or around the period immediately following the delivery of the judgement. Concerning the applicant’s advanced age, the applicant made available a copy of her ID card “KM1”, which shows she was born in 1920. 23. With this information being available, the court is persuaded that on balance, the applicant is telling the truth. It is not easy to understand what kind of proof the respondent needed in order to accept that the applicant was not telling lies. 24. My appreciation of the matter is that the applicant cannot be blamed for receiving court proceedings and judgement outside the period allowed for appeal. She cannot also be blamed for falling sick. In fact, at her advanced age, sickness is often an unwelcome and worrisome stalking companion. 25. In light of all this, I take the position that the merits of the applicant’s application have been well demonstrated. I therefore allow the application herein in terms of prayers 2, 3,4, and 5. As regards the prayer for stay of execution, the applicant is required to pay for security for costs. This court would like to order payment of such an amount as would be reasonable having regard to the interests of both sides. The material or information to use for this purpose is now not available. The court would wish to hear both sides on this issue on the next date. From now up to the next date, the order of stay will apply without the payment of security for costs. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 19TH DAY OF FEBRUARY, 2026. In the presence of; Okello for the Respondent Mark Mwendwa for Nyamu for Applicant Court Assistant - Musyoki A. KANIARU https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19 5

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JUDGE- ENVIRONMENT & LAND COURT, KITUI https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19 6

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