Kemunton v Ombogo

3. One of the Applicant’s grievances is an alleged anomaly in the description and identity of the suit property. It is averred that the Respondent originally led the reference claiming ownership of Plot Number Kericho/Kaplelartet/95 at Sondu Market. However, the Applicant contends that she has consistently occupied and operated her business on Plot Number 100 at Sondu Market, a tenancy that began in 1996 when her late husband leased the premises directly from the original owner, the late Samson Chepkwa Kipsubi. The Applicant argued that Plot 95 and Plot 100 are distinct parcels of land, and that the Tribunal misdirected itself by conating them and issuing eviction orders over a property that the Respondent did not properly claim in his initial pleadings. 4. The Applicant further asserts that, in an apparent attempt to cure this discrepancy, the Tribunal issued a fresh order on 15 December 2025, naming Kericho/Kaplelartet/100. The Applicant contends that this subsequent order eectively altered the subject matter of the suit long after the substantive hearing, placing her under an imminent, unjust threat of eviction from a property that was allegedly never the proper subject of the Respondent’s initial claim before the Tribunal. 5. In addition to the discrepancies over the plot numbers, the Applicant conates the tenancy dispute with an ongoing succession matter concerning the estate of the late Samson Chepkwa Kipsubi. The Applicant deposed that a Certicate of Grant and a Conrmed Grant were issued by the Kericho Chief Magistrate’s Court in Succession Cause Number E173 of 2014 on 6 March 2025. The Conrmed Grant awarded Plot Number 100 to the deceased’s second household, which was entirely absent from the Tribunal proceedings. The Applicant further averred that there is a pending appeal and an order of stay in that succession cause, which the Tribunal allegedly ignored or blatantly disregarded when determining the tenancy and eviction dispute. 6. To explain the inordinate delay in ling the appeal, the Applicant stated that she had initially opted to le an application before the BPRT seeking a review of the impugned orders. The Applicant asserted that this review application was pursued in utmost good faith and that the delay in ling the appeal was not intentional. The Applicant believes that her intended appeal raises triable issues and has a strong likelihood of success, and that the Respondent will suer no irreparable prejudice if this Court grants an extension of time and a stay of execution. Summary of the Reply 7. The Respondent opposed the application through a two-pronged approach, comprising a Notice of Preliminary Objection on points of law and a Replying Adavit addressing the factual allegations. In the Notice of Preliminary Objection dated 16th March 2026, the Respondent seeks to have the application struck out in limine with costs. The objection is grounded in a lack of territorial jurisdiction. The Respondent relied heavily on Section 13 of the Civil Procedure Act read together with Section 19(2) of the Environment and Land Court Act. The gist of the Respondent’s objection is that the properties in dispute, whether identied as Land Parcel Number Kericho/Kaplelartet/100 or Kericho/Kaplelartet/95, are geographically within the territorial boundaries of Kericho County. Additionally, the related succession cause (Kericho CM Succ Cause No. 173 of 2014) is domiciled in Kericho. 8. Consequently, the Respondent argues that the law governing the place of suing requires that any suit or application relating to the recovery, possession, or determination of rights over the said properties be instituted in the Environment and Land Court within the local limits of Kericho County. The Respondent contends that by ling the application before the Environment and Land Court at Kisumu, the Applicant has fundamentally breached statutory jurisdictional boundaries, rendering the application fatally defective and liable to be struck out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24 2

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9. In the Replying Adavit, the Respondent asserted that the application constitutes a gross abuse of the court process designed to prolong her rent-free occupation of the premises. The Respondent addressed the issue of the delay, noting that the impugned order granting vacant possession was delivered on 10th of June 2025. The Applicant led the present application on 3rd March 2026. The Respondent argues that this translates to a delay of approximately nine months, which is inordinate, unreasonable, and insuciently explained. 10. The Respondent argued that the Applicant was fully aware of the June 2025 ruling and chose not to appeal, but instead led an application for review dated 27th June 2025 before the Tribunal. The Tribunal heard the review application and dismissed it in a ruling on 16th October 2025. The Respondent argued that, having elected the avenue of review and having exhausted that process upon its dismissal, the Applicant is legally and procedurally precluded from mounting an appeal against the original order. The Respondent further argued that a party cannot seek to appeal the same order they unsuccessfully sought to review. 11. Regarding the alleged discrepancy in the plot numbers, the Respondent claried that after the dismissal of the Applicant’s review application, he led his own application dated 31st October 2025. This application sought to amend and correct the description of the property in the Tribunal’s records and the June 2025 ruling, changing it from Plot 95 to Plot 100 to reect the position established by the estate's administrators during the proceedings. The Tribunal corrected the order on 15th December 2025. The Respondent emphasised that this was a mere correction of the record initiated by the Respondent, which the Applicant did not oppose before the Tribunal. 12. The Respondent asserts that he is the rightful owner of the premises, having purchased Plot 100, which includes the shop, from the deceased’s estate administrators for Kshs 1,480,000, supported by sale agreements dated August 2021 and June 2025. He further states that the Applicant owes Kshs 45,000 in rent as at October 2022 and has refused to vacate despite a lawful notice of termination dated 28th September 2022. The Respondent urges the Court to dismiss the application, alleging that the Applicant comes with unclean hands, and to authorise the eviction orders so he can benet from his investment. Detailed Analysis and Determination 13. The application before the Court, read alongside the Preliminary Objection and the respective adavits, crystallises into the following issues for determination: a) Whether the Environment and Land Court at Kisumu has territorial jurisdiction to entertain an application relating to immovable property situated in Kericho County. b) Whether the Applicant has demonstrated good and sucient cause to warrant the enlargement of time to le an appeal, particularly in light of the Applicant’s prior pursuit of a review application before the Tribunal. c) Whether the Applicant has met the statutory requirements for an order staying execution pending appeal. The Court will now analyse and determine these issues sequentially. Territorial Jurisdiction 14. The Respondent’s Preliminary Objection challenges the competence of this Court to hear the application. The Respondent asserts that because the subject matter of the dispute, Land Parcel https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24 3

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Number Kericho/Kaplelartet/100, is geographically located in Kericho County, the provisions of the Civil Procedure Act dictate that the proper and exclusive forum is the Environment and Land Court at Kericho. 15. Section 12 of the Civil Procedure Act requires that suits concerning immovable property be instituted within the local limits of the court where the property is situated. Section 12 provides that: “ Subject to the pecuniary or other limitations prescribed by any law, suits- (a) for the recovery of immovable property, with or without rent or prots; (b) for the partition of immovable property; (c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property; (d) for the determination of any other right to or interest in immovable property; (e) for compensation for wrong to immovable property; (f) for the recovery of movable property actually under distraint or attachment, where the property is situate in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain”. 16. A reading of Section 12 implies that an originating dispute concerning the recovery of immovable property in Kericho ought to be led in Kericho. The matter before this Court is not an originating suit instituted in the rst instance. It is a miscellaneous application seeking leave to appeal a tribunal’s decision. The BPRT that issued the impugned orders was sitting in Kisumu. The judicial hierarchy dictates that appeals and supervisory applications from subordinate courts and tribunals generally lie to the superior court exercising territorial jurisdiction over the subordinate court or tribunal. The Kisumu BPRT falls within the appellate jurisdiction of the Kisumu Environment and Land Court. 17. Concurrently, because the physical subject matter of the dispute is situated in Kericho, the matter also inherently falls within the territorial jurisdiction of the Kericho Environment and Land Court. This creates overlapping territorial jurisdiction. The question then is whether the Applicant’s election to le this application in Kisumu, the seat of the Tribunal that issued the decision, rather than in Kericho, the locus of the property, constitutes a fatal defect that strips this Court of jurisdiction. 18. This Court nds that the Kisumu BPRT falls within the jurisdiction of the Kisumu Environment and Land Court. As the impugned decision was rendered by a tribunal sitting within this Court’s territorial limits, this Court is properly seized of supervisory and appellate authority over that decision. Simultaneously, because the subject matter is situated in Kericho, it also falls within the jurisdiction of the Kericho ELC. 19. Procedural law is designed to be the handmaiden of justice, not its master. An application cannot fail merely because the Applicant chose Kisumu rather than Kericho, where both venues have a legitimate nexus to the dispute. The overriding objective of the Civil Procedure Act, as enshrined in Sections 1A and 1B, is to facilitate the just, expeditious, proportionate, and aordable resolution of civil disputes. Section 1A states that the overriding objective is to facilitate the just, expeditious, proportionate, and aordable resolution of civil disputes, and mandates the Court, in the exercise of its powers, to seek to give eect to this objective. Consequently, the Respondent’s Preliminary Objection is without merit and is hereby overruled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24 4

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Extension of Time and the Doctrine of Election 20. The power to admit an appeal out of time is highly discretionary. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court must be led within thirty days of the date of the decree or order appealed against. The proviso to the section provides that an appeal may be admitted out of time if the appellant satises the court that there was good and sucient cause for not ling the appeal in time. The factors a court considers include the length of the delay, the reasons proered to explain it, the arguable nature of the intended appeal, and the degree of prejudice the respondent would suer if the application were granted. 21. The chronology of events in this matter is undisputed. The BPRT delivered its primary ruling ordering vacant possession on 10th June 2025. The Applicant led the present application for an extension of time on 3rd March 2026. This represents a delay of nearly nine months, beyond the statutory thirtyday window. 22. The Applicant’s justication for this delay is not expressly stated in the application. Without directly blaming the delay on this, the Applicant argued that, upon delivery of the judgment, she instructed her counsel to le an application for review before the Tribunal, which was heard and dismissed. Having failed at the review stage, the Applicant now approaches this Court seeking to resuscitate her right of appeal against the original judgment. 23. This scenario requires interpreting the legal principles governing the interplay between the remedies of review and appeal. The law provides distinct avenues for an aggrieved party to challenge a judicial decision. Section 80 of the Civil Procedure Act provides the statutory basis for review that: “ Any person who considers himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks t”. 24. This statutory provision is operationalised by Order 45 Rule 1 of the Civil Procedure Rules, which reiterates that the facility of review is available to a person aggrieved by a decree or order from which an appeal is allowed, “but from which no appeal has been preferred”. The law therefore provides mutually exclusive options: pursuing an appeal or pursuing a review. A party cannot simultaneously sustain both mechanisms against the same decision. The question is whether a party who consciously elects to pursue a review and exhausts that avenue upon its dismissal can then return to the original decision and seek an extension of time to le an appeal. The Court of Appeal has provided guidance on this procedural manoeuvre. 25. In Chairman Board of Governors Highway Secondary School v William Mmosi Moi [2007] KECA, the Court of Appeal addressed a scenario where an aggrieved party pursues a review to its conclusion and then attempts to activate an appeal against the original orders. The Court stated: “ So that the Board was at liberty to pursue the option of review of the orders… despite the ling of a notice of appeal to challenge the same orders. We have no hesitation however in stating that upon the exercise of that option and pursuit therefrom until its conclusion, there would be no further jurisdiction exercisable by an appellate court over the same orders of the court…That was the end of the matter and the notice of appeal was rendered purposeless. Both options cannot be pursued concurrently or one after the other”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24 5

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26. Similarly, in Gerald Kithu Muchanje v Catherine Muthoni Ngare & another [2020] eKLR, the Court of Appeal held that: “ The applicant was aggrieved by the judgment of the trial court. Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original Judgment. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error”. 27. Applying these principles to the facts at hand, the Applicant’s procedural conduct is fundamentally awed. The Applicant was aggrieved by the Tribunal’s judgment of 10th June 2025. She faced a legal fork in the road: she could either seek leave to appeal the judgment or apply to the Tribunal for a review. She deliberately chose to le a review application. The Tribunal heard her arguments and, on 16th October 2025, dismissed her review application. At that juncture, the Applicant’s options regarding the judgment were irrevocably extinguished. If the Applicant felt aggrieved by the outcome of the review proceedings, the proper recourse under the law was to challenge the ruling, rather than attempting to mount an appeal against the judgment. Seeking to appeal thereafter appears to be a blatant attempt to have a second bite at the cherry, given that the Applicant did not challenge the ruling on review. 28. The Applicant attempts to circumvent this legal barrier by pointing to the Tribunal’s subsequent order of 15th December 2025. The record demonstrates that after the review was dismissed, the Respondent moved the Tribunal to correct a discrepancy in the judgment to reect the accurate plot number as Plot 100 instead of Plot 95. The Tribunal obliged and issued an amended order to that eect. The Applicant posits that this amendment constituted a fresh order, thereby triggering a new right of appeal. 29. The Court nds this argument unpersuasive. Correcting a plot number on the face of the record under the slip rule is an administrative rectication that aligns the decree with the factual ndings already established; it does not constitute a substantive fresh judgment on the merits of the dispute. The core determinations regarding the rent arrears, the termination of the tenancy, and the order for vacant possession were nalised in the judgment and sustained on review. The Applicant cannot use a subsequent correction of the record initiated by the opposing party as a backdoor mechanism to reopen the substantive ndings that she had already unsuccessfully sought to review. 30. The discretionary relief of an extension of time is an equitable remedy available only to a deserving party. A litigant who engages in procedural gymnastics, attempting to litigate by trial and error, fails to demonstrate the good and sucient cause necessary to invite the Court’s sympathy. Time frames are provided by law as a matter of public policy to set a limit within which an action must be brought, thereby promoting the peace and welfare of society by preventing the unexpected enforcement of stale claims. 31. The Applicant’s decision to seek a review was a deliberate choice, made with the benet of legal counsel. That strategy’s failure does not justify circumventing appellate timelines. The nine-month delay is inordinate, and the explanation provided is insucient. The intended appeal against the original judgment is, therefore, procedurally incompetent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24 6

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Final Orders 32. The Court nds that the Applicant’s Notice of Motion is without merit. The Applicant, having exhausted the avenue of review, is precluded from appealing the original judgment. Accordingly, the Court makes the following nal orders: 1. The Court hereby overrules the Respondent’s Notice of Preliminary Objection dated 16th March 2026. 2. The Applicant’s Notice of Motion dated 3rd March 2026, seeking an enlargement of time to le an appeal and a stay of execution, is hereby dismissed. 3. The Applicant shall bear the Respondent’s costs of this application. DELIVERED VIRTUALLY, SIGNED AND DATED THIS 24TH DAY OF SEPTEMBER 2026 C.C. OLUOCH JUDGE In the presence of: Ismael Richard Ombogo, the Respondent, in person Faith Court Assistant In the absence of the Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24 7

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