Ingato v Ingei & another

3. By the replying adavit of eight paragraphs sworn on 15th April 2026, the 1st applicant stated, the 1st defendant/respondent through Kipkorir, Kipkorir CK and Company Advocates opposed the application and averred, inter alia, that judgement in Kapsabet CM ELC Case No. E082 of 2022 was delivered on 2nd July, 2025 in the presence and/or with the knowledge of the applicant and her Advocate as per copy of the judgment marked ‘JMO01’ and attached to the adavit. That the Applicant has not provided any sucient, reasonable, or credible explanation for the inordinate delay of approximately nine (9) months in ling the present application. That the delay herein is inordinate, intentional and inexcusable and is meant to defeat justice and deny me the fruits of my judgement. 4. The 2nd respondent through the Honourable Attorney General also opposed the application by the Grounds of Opposition dated 15th April 2026 which include; a. The application is incompetent, misconceived and an abuse of the court process and does not meet the legal threshold for the grant of leave to appeal out of time. b. The applicant has failed to provide a satisfactory, plausible and sucient explanation for the delay in ling the intended appeal and therefore not demonstrated good and sucient cause warranting the exercise of the court’s discretion in his favour. c. The intended appeal is frivolous, lacks merit and does not disclose any arguable grounds capable of persuading the court to extend time for ling of an appeal. 5. By a replying adavit sworn on 20th July 2026, one No. 81167 CPL Noah Tanui, a police ocer for and on behalf of the 1st respondent, stated that inquiries were on going relating to the alleged trespass to the suit land by the applicant. That the same were of criminal nature and that the process be allowed to run its natural course. That the prayers in the petition and the application are premature, speculative and structurally disruptive, 6. On 30th June 2026, the applicant’s 1st supplementary adavit of 23 paragraphs sworn on 26th June 2026 without any annexed documents, was expunged from the record herein upon application by Mr Mulula learned counsel for the applicant and in light of no opposition thereto by Mr Kipkorir learned counsel for the 1st respondent and Mr Kwame learned counsel for 2nd respondent. 7. In that regard, the 2nd supplementary adavit of 23 paragraphs sworn on 26th June 2026 with annexed typed proceedings led after the 1st supplementary adavit was retained herein. The applicant averred in part, that the Appeal is arguable and has chances of success. That he was not given an opportunity to be heard on the issue of fraud and illegalities. That the 1st Respondent has never attached copies of title deeds over the suit properties, and he tried to ask him before to share copies of documents in his custody but he refused to supply them to the applicant. 8. The applicant also averred that it is true that there was total breakdown in communication between himself and his advocate once the judgement was rendered. That the main reason that the Advcocate did not take the steps required in the matter was because they did not agree on the instruction’s fees of Ksh. 300,000/= which he requested verbally after the judgement. 9. Hearing of the application was by written submissions further to this court’s directions given on 30th June 2026 and Order 51 Rule 16 of the Civil Procedure Rules 2010. 10. The applicant’s submissions dated 17th July 2026 relate to the application dated 24th March 2026 (date in error as counsel meant 2nd April 2026) and counsel urged the court to accord the applicant an opportunity to be heard as the trial court failed to do so hence, allow the application accordingly. It https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6041/eng@2026-09-30 2

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was submitted that it common ground that this court has the discretion to allow the application and that the reasons and predicament that befell the applicant, be considered herein. 11. Counsel relied on the case of Nicholas Kiptoo Arap Korir Salat vs Indepenednt Electoral and Boundaries Commission & 7 others (2014) eKLR that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court. It was submitted that delay was occasioned partly by mistake of her former counsel on record and counsel cited Mbugua vs- Gitau (Civil Application E361 of 2025) [2026] KECA 445 (KLR), MSA vs KMKA {2024} KECA 1222 (KLR) and other authorities, to buttress the submissions. 12. By the submissions dated 23rd July 2026, learned counsel for the 1st respondent stated in part, that the applicant has failed to establish any sucient basis for the exercise of this Honourable Court’s discretion to grant the orders sought in the application thus, the application is devoid of merit and ought to be dismissed with costs. It was submitted that the trial court dismissed the applicant’s suit as per the judgment delivered on 2nd July 2025 in the presence of the applicant and his counsel. That neither a notice nor memorandum of appeal was led within the prescribed period. That further to the Court order of 4th November 2025, the resultant decree was executed as the applicant was lawfully evicted from the suit property which was subsequently sub divided into LR Nos. Nandi/Koibarak A/1369, 1370 and 1371 which were sold to third parties. 13. Counsel identied three issues for determination including whether the applicant has demonstrated sucient reason for granting the prayers in the application. In discussing the issues, reliance was made on, inter alia, Leo Sila Mutiso vs Hellen Wangari Mwangi (1999) eKLR. Further, that in the case of Nicholas Kiptoo Arap Korir Salat vs Indepenednt Electoral and Boundaries Commission & 7 others (2014) eKLR on the court’s unfettered discretion to extend time, the Supreme Court held thus: “ The exercise of discretion is a judicial act and has to be exercised on the basis of evidence and sound legal principles”. 14. The 2nd respondent did not le submissions in respect of the application. 15. In the foregone, the issues for determination relate to the applicant’s legal representation, leave to le appeal out of time, stay of execution of the trial court’s judgment delivered on 2nd July 2025, temporary injunction hence, boil down to whether the applicant is entitled to the orders sought in the application. 16. This Court is guided by section 79G of the Civil Procedure Act Chapter 21 Laws of Kenya that appeals from subordinate courts must be within thirty days. Besides, the proviso thereof gives the court discretion to admit the appeal out of time thus; ‘…..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.’ 17. It is established law that the application for leave to le an appeal out of time acts as an auxiliary door opener to a deserving party. That it is an equitable remedy granted at the discretion of the court; see Nicholas Kiptoo Arap Korir Salat case (supra). 18. The applicant prayed to the court to allow her counsel to come on record herein. It is in the spirit of fair hearing and in Musila v Thengi & 2 others (Civil Appeal 607 of 2019) [2025] KECA 750 (KLR), the Court of Appeal stated as follows: “ The right to a fair hearing entail notifying all parties of the hearing date, allowing each party to be heard, and permitting cross-examination of their opponents and witnesses.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6041/eng@2026-09-30 3

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19. It is noteworthy that the applicant led a memorandum of appeal dated 2nd April 2026. The same contains triable issues including overriding interests over the suit land and fair hearing. 20. In Andrew Kiplagat Chemaringo –vs- Paul Kipkorir Kibet (2018) eKLR, it was noted that there is no minimum or maximum delay as long as the delay is satisfactorily explained. The applicant has explained that after the judgment, she had an issue with her counsel on record. That the 1st respondent demolished her house as revealed in the OB number together with photographs annexed to the adavit in support of the application and that she was unable to obtain in time proceedings for appeal purposes. 21. Moreover, in the case of Butt vs Rent Restriction Tribunal (1979) eKLR, the Court of Appeal remarked; ‘........and the Appellant (the Applicant herein) has an undoubted right of appeal.....’ 22. Injunctive relief sought in the application is provided for under Order 40 Rule 2 of the Civil Procedure Rules 2010 which reads; ‘In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plainti may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.’ 23. In the case of Nguruman Ltd v Nielsen & 2 others (Civil Appeal 77 of 2012) [2014] KECA 606 (KLR), the Court of Appeal cited the celebrated case of Giella v Cassman Brown & Company Ltd (1973) EA 358 on the laid down requirements to be met by an applicant seeking injunctive orders namely; A prima facie case with a probability of success, Irreparable injury that cannot be compensated by damages and A balance of convenience if the court is in doubt. 24. The court proceeded to expound on the three requirements for the grant of injunctive orders thus: “ These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. If the applicant establishes a prima facie case that alone is not sucient basis to grant an interlocutory injunction, the court must further be satised that the injury the respondent will suer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” 25. In Board of Governors, Moi High School, Kabarak & another vs Bell & 2 others {2013} KESC 12 (KLR), the Supreme Court of Kenya held that the Court is empowered to exercise its jurisdictio; ‘………….……..safeguarding the character of the appeal pending the resolution of the contested issues.’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6041/eng@2026-09-30 4

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26. In the obtaining circumstances, the applicant is entitled to the prayers in the application. So, in lieu of the temporary injunction sought in the application, preservatory orders of status quo over the suit land be issued in line with section 13 (7) of the Environment and Land Court Act 2015 (2011). 27. A fortiori, the application dated 2nd April 2026, be and is hereby allowed on the terms infra; 28. a. That leave is granted to the applicant to le appeal out of time and the prospective appeal be led and served within the next fourteen days from this date failure of which these orders shall lapse without further orders being necessary. b. That Zachariah Mulula, Advocate be allowed to come on record for the Applicant herein. c. That stay of execution be issued by the Honourable Court. d. That instead of a temporary injunction in the manner sought in this application, the preservation orders given on 21st May 2026 are conrmed pending the outcome of the prospective appeal. In particular, there shall be no further sub divisions, transfer, sale, charge or disposal of the suit land reference Nandi/Koibarak/1079 A during that period to other parties. e. Costs of the application to abide the outcome of the prospective appeal in light of the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya and the decision in the case of Rai & 3 others vs Rai & 4 others (2014) eKLR on costs. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 30TH DAY OF SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; Mr. Mulula learned counsel for the applicant Walter and Emmaculate, court assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6041/eng@2026-09-30 5

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