Borura & another v Mosota (Environment and Land Appeal E038 of 2024) [2026] KEELC 4567 (KLR)

2. 6. That the learned trial magistrate erred in law and in fact by relying on an agreement which doesn't meet the standards of law and which had a difierent land reference number that was difierent from the one being claimed. 7. That the learned trial magistrate erred in law and in fact by failing to appreciate the fact that no exhibit was produced by the respondent in the form of a search or green card of the land that was allegedly purchased, hence causing a miscarriage of justice 8. That the learned trial magistrate erred in law and in fact by failing to underscore the fact that no report from the expert from the land registry and directorate of survey was produced to confirm the parcel occupied by the respondent, the acreage, and what is on the ground. 9. That the learned trial magistrate erred in law and in fact by relying on hearsay evidence, hence awarding land to a busybody. 10. That the learned trial magistrate erred in law and in fact by ordering land to be registered to the plaintifi without proper succession as per law. The Appellants urged this court to grant orders that: a. The appeal be allowed b. The judgment in the lower court KISII ELC CMC ELC NO 36 OF 2019 be set aside and substituted with an order allowing the counter-claim and dismissing the plaintifi's claim. c. Costs of the appeal and lower court be awarded to appellants 3. The summary background of the appeal is obtained from the record of appeal. The claim concerned a dispute over a portion of land originally comprised in Central Kitutu/Mwamosioma/270. The Respondent stated that on 7 June 1993 his late father purchased a portion measuring 50 by 100 feet from the husband of the 1st Appellant for Kshs. 30,000, which was paid in full. Following the purchase, they immediately took possession of the land, and have remained in occupation since 1993. During that period, his deceased father constructed three temporary structures, fenced the property, and planted gum trees, demonstrating continuous occupation and development of the land. 4. The Respondent avers that the purchased portion was later subdivided, resulting in parcel Central Kitutu/Mwamosioma/2318, on which his homestead stands. He explains that his father was the brother in law of the 1st Appellant and the 2nd Appellant is a purchaser. Owing to the family relationship, the Respondent’s father delayed demanding formal transfer of the land, trusting that his brother would eventually honour the agreement. However, despite repeated expectations, the 1st Appellant’s husband allegedly failed and/or refused to transfer the land into the plaintifi's name. 5. The plaintifi further states that when it became apparent that the transfer would not be efiected, he filed Kisii Municipal Land Disputes Tribunal Claim No. 1 of 2009 seeking an order compelling the 1st defendant to transfer the land to him on the basis of his long occupation. During the pendency of those proceedings, the 1st defendant allegedly transferred the land to the 2nd defendant, his wife, in August 2008, with the intention of defeating the plaintifi's claim. The plaintifi contends that the Tribunal nevertheless found in his favour on 27 July 2009 and directed that the land be transferred to him, having found that the transfer to the 2nd defendant had been undertaken during the subsistence of the dispute. 6. To safeguard his interest, the plaintifi states that he lodged a restriction against the title at the Kisii Lands Registry on 21 May 2009, preventing any further dealings with the land pending determination https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4567/eng@2026-07-16 2

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of the Tribunal proceedings. He maintains that the defendants' actions were intended to defeat his lawful interest arising from the sale agreement and his long occupation of the property. 7. The Appellants contested the claim through their separate statements of defence and counterclaim. The 1st and 2nd defendants admit that land parcel CENTRAL KITUTU/MWAMOSIOMA/270 was sold and subsequently subdivided but deny that the plaintifi was entitled to any portion of the land. They further deny that the plaintifi has ever occupied or resided on the suit property and put him to strict proof of those allegations. While admitting the contents of paragraph 8 of the plaint, the 1st defendant denies having had any land capable of being transferred to the plaintifi and maintains that no such transfer ever took place. 8. The defendants also challenge the plaintifi's reliance on proceedings before the Land Disputes Tribunal, contending that, if any such proceedings existed, the 1st defendant was wrongly joined. They further argue that the Tribunal lacked jurisdiction to determine questions of ownership of registered land. The defendants deny knowledge of some of the matters pleaded by the plaintifi, including those relating to subsequent court proceedings, but the 2nd defendant admits having lawfully sold and transferred the suit property to the 3rd defendant. They also deny all allegations of fraud and maintain that the transactions leading to the transfer of the property were lawful and properly undertaken. 9. Lastly, although the defendants admit the jurisdiction of the court, they deny that the plaintifi has a valid cause of action. They contend that the suit is incompetent, an abuse of the court process and legally untenable because it is statute-barred under the Limitation of Actions Act, seeks to enforce a void land transaction contrary to the Land Control Act, and improperly raises a claim for adverse possession, which they argue can only be determined by the High Court in the appropriate proceedings. They give notice of their intention to raise a preliminary objection on those grounds. Analysis And Determination: 10. The appeal was prosecuted by filing of written submissions. The Appellants' submissions are dated 28th April, 2026, while the Respondent's submissions are dated 27th April 2026. I have read the submissions and noted that the Respondent has raised the question of the validity of this appeal arguing it was filed out of time. Consequently, I will deal with it, as it determines whether I proceed to analyse the appeal on its merits. 11. The Respondent submitted that the Judgment appealed against was delivered on 30th July, 2024 while this appeal was lodged on 19th September, 2024 breaching the provisions of section 79G which requires appeals to be filed within 30 days from the date of the judgment/order appealed against. He contends that the appeal was filed out of time without leave of the court. 12. From the record, the Respondent raised the issue of the lodging of appeal out of time before the trial magistrate while they were prosecuting the application for stay of execution dated 24th September, 2024. I have read the Appellant’s submissions in support of the said application and observed that they addressed the court only on grounds for granting a stay of execution order. 13. Under a ruling dated 17th December, 2024, the learned trial magistrate granted only orders of stay – maintenance of the status quo. This was probably because that was what was pleaded and prayed for. Despite being aware that the Respondent was challenging the validity of their appeal, neither did the Appellants move the court to regularise the omission nor address the question of time raised in the present submissions in support of the appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4567/eng@2026-07-16 3

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14. Section 79G of the Civil Procedure Act provides thus; “ Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order; Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and suficient cause for not filing the appeal in time.” 15. I have crossed checked with CTS platform and confirmed that the memorandum of appeal was lodged in court on 19th September, 2024. This about 48 days from the date of the delivery of the judgment, thus outside the 30 days stated in the law. The Appellants filed record and supplementary record of appeal which does not contain any application seeking extension of time to file an appeal. There is a notice of appeal appearing at page 3 of the record dated 31st July, 2024. This document does not appear in the online record of pleadings filed in this appeal. Further, the filing of notice of appeal applies only to appeals lodged to the Court of Appeal. 16. The exclusions when counting days are provided for under Order 50 rules 2 and 4 of the Civil Procedure Rules, which states that; “ “ 2. Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceedings, Sunday, Christmas Day and Good Friday, and any other day appointed as a public holiday shall not be reckoned in the computation of such limited time. 4. Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.” 17. I am not aware of any public holidays in August in the Kenyan calendar of events. The time exceeded here was also not limited to 6 days, as the excess period is 18 days. Although the submissions were filed almost at the same time, the Appellant did not file further and/or skeleton submissions to explain the filings outside the time set in law. 18. Therefore, I hold that the appeal is incompetent, having been filed outside the 30-day period set by law and without leave of the court. Consequently, there is no valid appeal to be determined on the merits, and I proceed to strike it out for incompetence. The costs are awarded to the Respondent. DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF JULY, 2026. A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4567/eng@2026-07-16 4

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