Onjak v Ombonya & 2 others

or contumelious but was occasioned by circumstances beyond the Applicant's control. That the Applicant was unaware that the appeal had not been led until after time had lapsed. That the intended appeal raises weighty and arguable issues of law and jurisdiction as outlined in the application. That the Applicant has been in occupation and utilization of land parcel EAST GEM/JINA/802 for over 60 years and the decree directs cancellation of the Applicant's registered title and issuance of title to the Respondents, which if eected will render the intended appeal nugatory. That the Respondents will suer no prejudice that cannot be compensated by costs. 3. The application is also supported by the adavit sworn by IGNATIUS OMOLO ONJAK which reiterates the grounds highlighted above. The name of the counsel who fell ill is disclosed as Sam Onyango and a screen message is annexed. The deponent avers that the said communication came a while back and as a lay person he did not know the court timelines for ling appeals. That he relied entirely on his advocate for legal representation and was unaware of the strict thirty (30) day timeline under Section 79G of the Civil Procedure Act. That upon engaging new counsel and obtaining proper legal advice, he was advised that the Judgment contains serious errors of law and jurisdiction warranting appeal. That the application is brought in good faith. 4. Following the ling of the application, the 1st and 2nd Respondents formally appointed the rm of M/S Omaya & Co. Advocates to represent their interests. The said Advocates led a Notice of Appointment of Advocates dated 17th April, 2026 along with the Replying Adavit sworn by the 2nd Respondent. 5. Subsequently, on 28th April 2026, the Oce of the Attorney General through Grace Essendi, Principal Litigation Counsel led a Memorandum of Appearance on behalf of the 3rd Respondent, the District Land Registrar, Siaya. They did not participate in the application. 6. The 1st and 2nd Respondents opposed the application vide a Replying Adavit sworn on 17th April 2026 by PETER CHIENG AMBOGO contending that the application is wholly misconceived, frivolous, bad in law and an abuse of court process. He depones that the application is merely an attempt to obstruct the Respondents from enjoying the fruits of a judgment delivered on 23rd October 2025, which conrmed their ownership of land parcels EAST GEM/JINA/802 and 801, along with the right to conduct burial rites on the property. A certied copy of the decree dated 27th October 2025 is annexed as "POO-1". 7. Building upon the nality of the trial court decision in paragraph 4 of the replying adavit, the 2nd Respondent points out that the Court already heard and determined the dispute between the parties. Consequently, he stresses that the issue of an intended appeal raised at this late stage is a complete afterthought, particularly because the delay in lodging the appeal is entirely inexcusable. 8. The 1st and 2nd Respondents asserts that the Applicant has completely failed to satisfy the legal requirements for a grant of stay of execution. He avers that the current application is an afterthought designed solely to embarrass the Respondents. 9. The Respondents highlight that the Applicant is fully aware that the 3rd Respondent lost his wife and that burial rites were scheduled to take place on 3rd May 2026. He contends that the Applicant is weaponizing the excuse of this court application specically to frustrate the Respondents, derail the burial arrangements and inict even more pain on the family. 10. The Respondents further aver that the Applicant’s prayer for leave to le an appeal out of time is incompetent, unmerited and fails to disclose any arguable appeal or sucient reason for the delay. He emphasizes that although judgment was delivered on 22nd October 2025, ve months elapsed without the Applicant ling any appeal or taking any steps to lodge an application to set aside the judgment or decree. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 2

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11. Reinforcing the trial court's explicit ndings, the Respondents remind the Court that the trial court already issued a binding declaration that the Respondents are the lawful proprietors of land parcels EAST GEM/JINA/802 and 801. Therefore, he maintains that this application serves no legitimate legal purpose and is intended only to inict further distress on a grieving family. 12. The Respondents note that the Applicant has failed to establish any legal or proprietary interest whatsoever over Land Parcel No. EAST GEM/JINA/802 to justify any judicial interference with the judgment, especially considering that the Applicant resides on an entirely separate neighboring parcel, EAST GEM/JINA/429. 13. He submits that the entire application is calculated purely to delay the course of justice and deny the Respondents their constitutional right to enjoy the benets of a nal judgment of the Court. 14. Finally, the Respondents conclude by deponing that it is in the absolute interest of justice that the Applicant's Application be dismissed with costs and that the Respondents be allowed to proceed unimpeded with the execution process. Applicants Further Adavit 15. In response to the Replying Adavit of the 2nd Respondent, the Applicant, led a Further Adavit dated 6th May,2026 speaking directly to the allegations raised. 16. Addressing the explanation for the delay, the Applicant states that immediately following the delivery of judgment on 22nd October 2025, he promptly instructed his then advocate to lodge an appeal. However, that advocate fell seriously ill while retaining sole conduct of the le and failed to inform him of the running statutory timelines. 17. It was only upon engaging his current advocates that the Applicant discovered no appeal had ever been led, prompting him to immediately institute the present application. Consequently, he maintains that the resulting delay was neither deliberate nor inordinate but was driven entirely by circumstances beyond his control. 18. The Applicant claries that he has already led a formal application for stay of execution before the trial court in Siaya MC ELC No. 70 of 2018. Because the trial court is actively considering the question of stay, he asserts that the issue of execution is being properly addressed in that forum. 19. Regarding the emotional burden of the pending burial, the Applicant contends that the burial dispute is likewise the subject of ongoing proceedings before the lower court and does not arise from this application. He maintains that the Respondents' heavy reliance on the burial issue is merely an attempt to introduce extraneous matters designed to prejudice the court and defeat both the pending proceedings and his intended appeal. 20. The Applicant further states he has been in continuous occupation and use of land parcel EAST GEM/ JINA/802 for a long period and stands to suer substantial, irreversible prejudice if denied leave to appeal. He concludes by arming that his intended appeal raises serious, arguable issues of law that genuinely merit a full determination by this Honourable Court. Submissions 21. The application was dispensed by way of written submissions. The Applicant as well as the 1st and 2nd Respondents led their respective written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 3

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Applicant Submissions 22. In support of the Application dated 11th March, 2026, the Applicant led written submissions dated 6th May 2026 through the rm of Messrs. Ben Aduol Nyanga & Co. Advocates. 23. On the legal principles governing applications for enlargement of time, the Applicant relied on Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, alongside Sections 1A, 1B, 3A and Articles 50 and 159 of the Constitution of Kenya, 2010. 24. The Applicant emphasizes that this Court holds broad discretionary jurisdiction to admit an appeal out of time upon showing good and sucient cause. In support of this proposition, the Applicant cited the decisions in Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others [2014] eKLR, Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] eKLR, and County Executive of Kisumu v. County Government of Kisumu & 8 Others [2017] eKLR. 25. The Applicant submits that immediately following the judgment on 22nd October 2025, he instructed his former advocate to lodge an appeal, but the said advocate fell severely ill, retained the le and failed to act or notify the Applicant of statutory timelines. The Applicant argued that as a lay person relying on counsel, he moved with dispatch upon engaging current advocates and that such delay was neither deliberate nor inordinate. To fortify this position, the Applicant cited Belinda Murai & Others v. Amos Wainaina [1979] eKLR and Philip Chemwolo & Another v. Augustine Kubende [1982-88] KAR 103, emphasizing that blunders of counsel ought not to shut out an innocent litigant from substantive justice. 26. The Applicant avers that the Respondents' reliance on extraneous matters such as burial arrangements does not negative his valid explanation, particularly since execution and stay applications remain actively pending before the trial court. 27. On whether the intended appeal is arguable, the Applicant submits that an applicant need not show that the appeal will denitely succeed, but merely that there is at least one triable issue. Citing Kenya Commercial Bank Limited v. Nicholas Ombija [2009] eKLR, Stanley Kang'ethe Kinyanjui v. Tony Ketter & 5 Others [2013] eKLR, and Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] eKLR, it was pointed out that the intended appeal raises fundamental questions touching on jurisdiction and the trial court's order cancelling the Applicant's registered title to land parcel EAST GEM/JINA/802. 28. The Applicant avers that the Respondents stand to suer no prejudice if the application is allowed, as any operational hardship can be compensated by costs whereas denying leave would permanently extinguish his proprietary rights. He relied on Butt v. Rent Restriction Tribunal [1982] KLR 417, Richard Nchapi Leiyagu v. IEBC & 2 Others [2013] eKLR, Raila Odinga & 5 Others v. IEBC & 3 Others [2013] eKLR, and Mwangi v. Kenya Airways Ltd [2003] eKLR to urge the Court to exercise its discretion in favor of substantive justice. 29. On whether the Respondents will suer prejudice if the orders sought are granted, the Applicant submits that the Respondents' claims of prejudice concerning burial arrangements are misplaced and legally untenable within the scope of an extension of time application. The Applicant emphasized that the Respondents failed to disclose the existence of active proceedings before the trial court handling execution and stay matters. Citing Butt v. Rent Restriction Tribunal [1982] KLR 417 and Richard Nchapi Leiyagu v. IEBC & 2 Others [2013] eKLR, the Applicant submits that the focus at this stage is preserving the subject matter so as not to render an appeal nugatory, arguing that any inconvenience to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 4

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the Respondents is compensable through costs, whereas denying leave would permanently extinguish the Applicant's proprietary rights and long-standing occupation without a hearing. 30. On whether this Court should exercise its discretion in favor of the Applicant, the Applicant submits that the Court is bound to exercise its powers judiciously to advance justice, fairness and proportionality pursuant to Articles 48 and 50 of the Constitution. Having relied on Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, citing Raila Odinga & 5 Others v. IEBC & 3 Others [2013] eKLR for the principle that courts must prioritize substantive justice over procedural technicalities. Referencing Mwangi v. Kenya Airways Ltd [2003] eKLR, Applicant urged that where a party demonstrates good cause, courts ought to lean toward sustaining a suit to enable determination on the merits. 31. In conclusion, the Applicant submits that he has satisfactorily demonstrated sucient cause for the delay, established that the intended appeal is arguable and shown that no undue prejudice will be occasioned to the Respondents, contending that the application is meritorious, grounded in law and consistent with constitutional principles of justice, wherefore the Court is urged to allow the application and grant orders for leave to appeal out of time, deem the annexed Memorandum of Appeal as duly led upon payment of requisite fees and order that costs be in the cause. Respondents’ Submissions 32. In opposition to the Application, the 1st and 2nd Respondents rely on the Replying Adavit sworn on 17th April 2026. The Respondents submit that extension of time is governed by Section 79G of the Civil Procedure Act, which mandates that an appeal from a subordinate court be led within thirty (30) days, unless the applicant demonstrates good and sucient cause for the delay. 33. In applying the above statutory threshold, the Respondents submit that the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR established that extension of time is an equitable, discretionary remedy not a right available only to a deserving party who satisfactorily explains the delay. They emphasized that the Applicant bears the onus of demonstrating ve cumulative elements: the length of delay, the reasons for delay, whether the intended appeal is arguable, whether the respondents will suer prejudice and whether the application is brought in good faith. 34. Addressing the length of delay and the explanation oered, the Respondents submit that Judgment was delivered on 22nd October 2025, yet the present application was brought on 11th March, 2026. The Respondents argued that this constitutes a delay of approximately ve (5) months from judgment rendering the delay inordinate and substantial. 35. Regarding the Applicant’s attempt to excuse this lapse by pointing to the alleged illness of his former advocate, the Respondents submit that the Applicant failed to tender any credible evidence establishing the nature of the illness, the period of incapacity, that counsel was entirely unable to perform professional duties or that no other advocate in the rm could act. Counsel asserted that litigants owe a duty to actively follow up on their matters, citing Bi-Mach Engineers Ltd v. James Kahoro Mwangi [2011] eKLR for the proposition that a litigant cannot escape the consequences of inaction merely by blaming counsel where no satisfactory explanation or proof is provided. 36. On whether the intended appeal is arguable, the Respondents submit that the Applicant has failed to demonstrate any serious, triable issue or disclose any error of law or misdirection by the trial court. They contended that the trial court conclusively determined the parties' rights over Land Parcel No. EAST GEM/JINA/802 after a full hearing and that the Applicant has never established any legal, equitable or proprietary interest in the suit property. They further argued that an applicant seeking https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 5

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enlargement of time must show a bona de issue worthy of appellate consideration rather than a mere desire to appeal hence, the intended appeal is speculative, lacks merit and is an afterthought designed to obstruct implementation of the Judgment. 37. The Respondents submit that they obtained a lawful Judgment after enduring prolonged litigation dating back to 2018. Counsel contended that reopening the dispute denies the Respondents the fruits of their judgment and occasions ongoing prejudice and uncertainty regarding ownership and occupation. Having relied on Machira t/a Machira & Co. Advocates v. East African Standard (No. 2) [2002] eKLR for the principle that a successful litigant should not be deprived of the fruits of a judgment except for good cause urging that no such cause exists here as litigation must come to an end. 38. In conclusion on discretion, the Respondents submit that the judicial discretion to extend time must be exercised judicially and not whimsically. They argued that because the delay is inordinate, the explanation unsupported by evidence, the intended appeal devoid of merit and the application is an afterthought that prejudices the Respondents and that the application is frivolous and an abuse of court process. 39. The Respondent therefore urges this Honourable Court to nd that the Applicant has failed to establish sucient cause under Section 79G of the Civil Procedure Act and to dismiss the Notice of Motion dated 11th March 2026 with costs to the Respondents. Analysis and Determination 40. I have carefully considered the application, adavit and further adavit in support thereto and replying adavit in opposition as well as the submissions on record. The following issues commend determination: 1. Whether the Applicant has demonstrated sucient cause to warrant an extension of time to le an appeal. 2. Who bears the Costs of the application? 41. The application is brought under the provisions of sections 16A of the Environment and Land Court Act; 79G of the Civil Procedure Act, Orders 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules and Articles 50 and 159 of the Civil Procedure Rules. 42. Jurisdiction to enlarge time is donated under the provisions of Section 79G of the Civil Procedure Act which reads; "Every appeal from a subordinate court to the High Court shall be led 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 of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satises the court that he had good and sucient cause for not ling the appeal in time”. 43. Furthermore, the above discretionary power is operationally executed under Order 50 Rule 6 of the Civil Procedure Rules, which confers explicit authority upon the Court to enlarge any time xed by the rules or court orders for taking any proceeding, even where the application for extension is brought after the expiration of the appointed time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 6

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44. The governing principles for the exercise of this judicial discretion were succinctly set out in the Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997), where the Court observed: It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: rst; the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted…" 45. The above principles were further armed by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014]. The Apex court underscored that extension of time is not a right granted as a matter of course but a discretionary remedy aimed at securing justice. "The Supreme Court’s discretion to extend time for ling an appeal was guided by key principles. Extension was not a right but an equitable remedy granted to deserving parties. The applicant must lay a satisfactory basis for the request. The decision was case-specic, requiring a reasonable explanation for the delay, absence of undue delay, and consideration of potential prejudice to the respondent. In some cases, such as election petitions, public interest may be a factor. Ultimately, the court balanced fairness, diligence, and the interests of justice in determining whether to grant an extension.” 46. The court will be guided accordingly. 47. Judgment in the subordinate court was delivered on 22nd October, 2025. The statutory 30-day window within which to lodge an appeal lapsed. The instant application was lodged on 11th March, 2026 representing a delay of approximately ve (5) months. 48. In evaluating the circumstances, this Court nds that a delay of ve (5) months is not inordinate so as to shut the Applicant out of the court room. See Sundowner Lodge Limited vs Kenya Tourism Development Corporation [2019] eKLR where the Supreme Court of Kenya observed that a delay of 4 months is not inordinate. 49. In evaluating the explanation for the delay, the Applicant depones that his former advocate fell ill while retaining sole conduct of the le, thereby failing to lodge the appeal within time. While the 1st and 2nd Respondents vigorously contend that no medical evidence was tendered to prove counsel’s incapacity, this Court takes a holistic view of the matter. The Applicant, being a layperson, entrusted the handling of his matter to his advocate and moved to instruct new counsel upon discovering the oversight. While the failure to lodge the appeal on time or attach medical proof remains a procedural lapse, this Court declines to dismiss the Application solely on account of the advocate's illness or inaction. 50. This court agrees with the Applicant that blunders of counsel ought not to be visited upon an innocent litigant where substantive justice can still be achieved as armed in Belinda Murai & Others v. Amos Wainaina [1979] eKLR and Philip Chemwolo & Another v. Augustine Kubende [1982-88] KAR 103. Courts must strive to balance procedural technicalities against substantive justice pursuant to Article 159(2)(d) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 7

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51. On whether the intended appeal raises arguable triable issues, guidance is drawn from Kenya Commercial Bank Limited v. Nicholas Ombija [2009] eKLR which establish that: "An “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.” 52. A careful examination of the Memorandum of Appeal annexed to the application reveals eleven (11) detailed grounds of appeal that raise fundamental, multi-faceted issues of both law and fact. 53. The issues raised ranging from the jurisdiction of a Magistrate’s court to nullify a title derived from a conrmed grant, the statutory application of Section 26(1)(b) of the Land Registration Act, procedural propriety regarding claims for adverse possession commenced by a plaint, to statutory limitation and res judicata are clearly triable, substantial and far from frivolous. They go directly to the core of the judicial authority exercised by the subordinate court and the validity of registered land titles. 54. At this stage, this Court is not determining the ultimate success of the appeal, but merely conrming that these grounds constitute serious, bona de questions of law and fact deserving of a full appellate hearing. 55. About the prejudice to be suered by the Respondents, the respondents deponed that grant of leave will result into delay in them enjoying the fruit of his judgment. In my view, this is compensable by way of costs. 56. This court takes cognizance of the fact that the right to appeal is a fundamental right recognized under Article 50 of the Constitution as part of the right to a fair trial. 57. The Applicant’s Notice of Motion dated 11th March, 2026, is hereby allowed on the following terms: i. Leave is hereby granted to the Applicant to lodge and serve his Memorandum of Appeal out of time. ii. The Applicant shall le and serve the Memorandum of Appeal within fourteen (14) days from the date of this Ruling. iii. That failure to comply with order No. ii above leave shall automatically terminate on the 15th day. iv. The costs of this Application to the Respondents. It is so ordered DATED AT SIAYA THIS 28TH DAY OF SEPTEMBER 2026 HON. JUSTICE A. E. DENA JUDGE 28/09/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Ms. Otieno holding brief for Mr.Nyaga for Applicant N/A for Respondents Court Assistant: Victor Bwire https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5913/eng@2026-09-28 8

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