Ascar Mboya Gor Paul Gor v Mishael Onyango Otieno & Fanice Lilian Owuor Orure

certainty, finality, and the vigilant pursuit of justice. The law does not aid those who slumber on their rights, nor does it countenance an open-ended disruption of settled human affairs. When a party seeks the indulgence of an appellate court to unlock closed doors after half a decade of unmitigated inertia, the burden is exceptionally high. Time lost is irretrievable, and procedural timelines are not mere guidelines to be discarded at whim, but vital shields protecting litigants against the tyranny of stale claims and unending uncertainty. 2. SUMMARY OF THE APPLICATION & BACKGROUND CONTEXT 2. This matter stems from a protracted land dispute concerning Land Parcel No. Kanyada/Kanyango-Kalanya/1511 (measuring approximately 0.71 hectares situated in Homa Bay County), originating from Chief Magistrate’s Court ELC Case No. 7 of 2018. 3. By a Notice of Motion dated 12th May 2026, brought under Order 51 Rule 1 of the Civil Procedure Rules and Section 79G (Proviso) of the Civil Procedure Act (Cap 21), the Applicants seek orders to certify the application urgent, admit the Memorandum of Appeal dated 8th May 2026 out of time, and have costs abide the appeal. 4. The underlying judgment by Hon. T.M. Olando (SRM) was delivered on 4th November 2020, wherein the trial court found that the Applicants agreed to sell 0.08 hectares of the land for Kshs. 250,000/= and directed the transfer upon payment of the outstanding balance of Kshs. 150,000/= plus costs and interest. 5. Subsequent proceedings before Hon. Christine Kemuma Auka assessed the Respondents' bill of costs at Kshs. 92,335.00 on 4th August 2025, followed by a set-off application filed on 22nd August 2025 that was ultimately dismissed by the subordinate court on 26th March 2026. 2 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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6. The Applicants contend that the appeal was held in abeyance due to promises by the 2nd Respondent to pay the purchase balance, alongside ongoing interlocutory execution and cost-assessment processes. 3. SUMMARY OF THE RESPONSE & OBJECTIONS 7. The 2nd Respondent opposed the application via a Replying Affidavit sworn on 2nd June 2026, highlighting several core grounds: i) Gross & Inordinate Delay: The delay spans over 5 and a half years (approximately 68 months / over 2,000 days) from the judgment date of 4th November 2020. ii) Lack of Reasonable Explanation: The Applicants failed to provide a credible, satisfactory accounting for the prolonged inaction. iii)Acquiescence and Approbation/Reprobation: The Applicants accepted and received the decretal sum of Kshs. 150,000/= following early 2026 court directions, estopping them from challenging the decree. iv)Prejudice & Finality: The 2nd Respondent purchased the land in 2017, took vacant possession, and established a home, making the reopening of litigation severely prejudicial. v) Procedural Non-Compliance: The Applicants failed to furnish proper certification from the trial court regarding the decree under Section 79G of the Civil Procedure Act. 4. FAILURE TO COMPLY WITH COURT DIRECTIONS AND SUBSEQUENT REQUEST 8. On 25th May 2026, this Court issued strict case-management directions: explicitly rejecting the prayer for urgency due to the extreme delay, ordering physical service, and setting timelines for response filing and sequential 3 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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written submissions (maximum 4 pages, Times New Roman, Font 12, 1.5 spacing). 9. Following the service of the 2nd Respondent's Replying Affidavit on 4th June 2026, the Applicants completely failed to file their written submissions within the mandated timeframe. 10.Consequently, on 17th July 2026, the 2nd Respondent filed a formal Request to Strike Out the Applicants' Written Submissions pursuant to Order 50 Rule 6 of the Civil Procedure Rules and Direction No. 5 of the court's order, emphasizing that judicial timelines must be respected. 5. THE LAW AND CURRENT LEGAL AUTHORITIES 11.The statutory basis for extending time to lodge an appeal from a subordinate court is Section 79G of the Civil Procedure Act (Cap 21), which provides that an appeal shall be entered within thirty days from the date of the decree or order, provided that an appellate court may admit an appeal out of time if the applicant shows good and sufficient cause. 12.The principles governing judicial discretion in applications for extension of time and substantive justice are well-settled in regional and comparative jurisprudence across East and Central Africa: i) Discretionary Nature & Substantial Justice (Kenya, Uganda & India): In Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] eKLR and Mwangi v. Kenya Airways Limited [2003] eKLR, Kenyan courts established that extension of time is an equitable discretion requiring a reasonable, credible, and coherent explanation for the entirety of the delay. As highlighted in Collector, Land Acquisition, Anantnag v. Mst. Katiji [1987] AIR 1353, and affirmed in Ugandan frameworks (e.g., Pan African Insurance Co. Ltd v. Transocean (U) Ltd [1998] EA 293), procedural rules must serve the administration of substantive justice, but 4 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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unexplained prolonged delays defeat equity. ii) Inordinate and Unexplained Delay (Kenya & Zambia): Echoing the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, and regional common-law principles on finality (such as the Zambian Supreme Court position in AttorneyGeneral v. Achiume [1983] Z.R. 1 (SC) and Stanbic Bank Zambia Limited v. Savenda Management Services Limited [CAZ/08/040 of 2017]), extension of time is an equitable remedy strictly reserved for the diligent, where unexplained inordinate delay is inherently fatal. iii)Approbation and Reprobation (Doctrine of Election): In Express Automation Limited v. Sprint Couriers Limited [2018] eKLR and Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd [1982] KLR 485, courts affirmed that a party cannot accept the benefits of a judgment or decree and subsequently seek to challenge or appeal against the same decree. 6. DETAILED ANALYSIS AND DETERMINATION i) Evaluation of Inordinate and Unexplained Delay: The core of an application for extension of time under Section 79G of the Civil Procedure Act hinges upon the demonstration of "good and sufficient cause." In the present matter, the judgment sought to be appealed was delivered on 4th November 2020, yet the application was only lodged on 12th May 2026—representing an inordinate lapse of over 5.5 years (approximately 68 months or over 2,000 days). While courts are enjoined to dispense substantive justice without undue regard to technicalities under Articles 159(2)(d) of the Constitution of Kenya and Sections 1A and 1B of the Civil Procedure Act, the overriding objective does not license indolence or obliterate statutory limitation periods. The Applicants’ attempt to shift blame to informal expectations, private negotiations, or collateral 5 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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execution/set-off litigation in the subordinate court fails to establish a legal justification. Equity aids the vigilant and not the indolent (vigilantibus non dormientibus jura subveniunt), and a litigant cannot sleep on their rights for nearly six years and expect the equitable doors of the appellate court to swing open automatically. ii) The Fatal Impact of Approbation and Reprobation: Beyond the sheer magnitude of the delay, the conduct of the Applicants disentitles them to the equitable relief sought. The record demonstrates that following early 2026 court directions, the Applicants actively received and accepted the decretal sum of Kshs. 150,000/=. Under the well-established doctrine of election and the rule against approbation and reprobation—reiterated in Express Automation Limited v. Sprint Couriers Limited [2018] eKLR—a party cannot approbate and reprobate simultaneously. Having reaped the financial fruit and accepted performance under the subordinate court's decree, the Applicants are legally estopped from turning around to challenge the very same decree on appeal. iii)Compounding Default and Disregard of Court Directions: The untenable nature of the Applicants' cause is further exacerbated by their brazen disregard of active court management. On 25th May 2026, this Court issued strict, peremptory directions governing the conduct of the application, requiring sequential written submissions within tight timeframes. Following the service of the 2nd Respondent's Replying Affidavit on 4th June 2026, the Applicants completely omitted to file their written submissions. This inactivity directly triggered the 2nd Respondent's formal Request dated 17th July 2026 under Order 50 Rule 6 of the Civil Procedure Rules. Judicial directives are not mere suggestions; they are binding commands essential for the orderly, predictable, and expeditious administration of justice. The failure to comply left the application legally unsupported and validated the striking out of any belated 6 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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positions. iv)Balance of Prejudice and Public Interest in Finality: Finally, the court must weigh the competing prejudices. The 2nd Respondent purchased the subject land parcel back in 2017, took vacant physical possession, and established a permanent home thereon. To uproot a settled land transaction after nearly a decade of existence and over five years post-judgment would occasion severe, irreversible prejudice and hardship. Public policy dictates that there must be an end to litigation (interest reipublicae ut sit finis litium), and the sanctity of completed transactions and finality of judicial decrees must be preserved against speculative, stale onslaughts. 7. FINAL ORDERS 1. The Applicants’ Notice of Motion application dated 12th May 2026 seeking leave to lodge and admit the Memorandum of Appeal out of time is hereby DISMISSED. 2. The 2nd Respondent’s Request dated 17th July 2026 to strike out the Applicants' unfiled/belated submissions for non-compliance with court directions is ALLOWED. 3. The Applicants shall bear the costs of this application, payable to the 2nd Respondent. 4. It is further ordered that any pending execution or stay applications emanating from this dismissed motion are spent, and the file in ELC Appeal No. E020 of 2026 be and is hereby closed. IN THE PRESENCE OF: 7 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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1. Mr. Oyala for G.S. Okoth for the Applicants 2. Fanice, the 2nd Respondent, appearing in person and also representing the 1st Respondent 3. Court Assistant: Mercy Awino DATED, SIGNED, AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 22ND DAY OF SEPTEMBER 2026. ................................................ HON. JUSTICE J.W. WANYONYI JUDGE, ENVIRONMENT & LAND COURT HOMA BAY In the presence of; 1. Oyala for G.S Okoth -Present (Muted) 2. Fanice for the 2nd Respondent – Present also representing the 1st Respondent 3. Ms. Awino, Court Assistant. 8 | Page HOMA BAY ELC APPEAL NO. E020 OF 2026 – RULING

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