Moses Omuse Ekapten v Redempta Igwatai Imoo

December 2025, but the proceedings and the ruling had not yet been supplied. He contends that leave of the court is necessary before filing the Memorandum and Record of Appeal out of time and urges the court to exercise its discretion in his favour. THE RESPONDENT’S CASE 3. The Respondent, Redempta Igwatai Imoo, opposes the application through a replying affidavit. She states that in 2004 she entered into a land sale agreement with the Appellant’s late father, Alfred Ikapten Ingaa, from whom she purchased 1.5 acres out of Land Parcel South Teso/Osurette/180. She avers that when the deceased failed to transfer the land, she successfully pursued her claim before the Teso District Land Disputes Tribunal, whose award was subsequently adopted as a judgment of the court in Land Dispute No. 17 of 2006. 4. The Respondent contends that the Appellant was not a party to the sale agreement and therefore lacks the legal basis to challenge a transaction entered into by his late father. She further states that since the deceased was the registered BUSIA ELC LA NO. E003 OF 2026 – RULING Page 2 of 14

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proprietor of the land, he did not require the Appellant’s consent to sell or transfer it. 5. She asserts that the Appellant’s attempts to invalidate the sale are unjustified, unlawful and made in bad faith despite his father having received full consideration for the land. She also avers that the Appellant seeks to evict her and exhume the bodies of her two nieces buried on the land she lawfully purchased, thereby violating her constitutional right to property and peaceful enjoyment thereof. 6. The Respondent further maintains that she was never served with or informed of MCCC No. 40 of 2006 or the Chamber Summons dated 19th April 2024, whose resultant ruling the Appellant seeks to challenge. She therefore considers herself a stranger to those proceedings and argues that the orders obtained therein were irregular as they were issued without her participation. 7. She also contends that the Appellant has failed to place sufficient evidence before the court to justify the application and has not demonstrated any reasonable basis for extension of time. According to her, the appeal is frivolous, vexatious BUSIA ELC LA NO. E003 OF 2026 – RULING Page 3 of 14

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and intended only to delay her enjoyment of land she lawfully acquired over two decades ago. She accuses the Appellant of abusing the court process through numerous applications and litigation notwithstanding aimed the at depriving long-standing her sale of the land, agreement and tribunal judgment in her favour. 8. On those grounds, the Respondent urges the court to dismiss the application with costs, arguing that allowing it would occasion a miscarriage of justice and perpetuate unnecessary litigation. ANALYSIS AND DETERMINATION 9. Having considered the Notice of Motion dated 13 th February 2026, the supporting affidavit, the replying affidavit and the rival submissions, the court is of the view that the only issue for determination is whether the Appellant has established sufficient cause to warrant the exercise of this Court’s discretion to grant leave to file and serve the Memorandum of Appeal out of time. 10. The starting point in determining the present application is to identify first the procedure and statutory timelines applicable BUSIA ELC LA NO. E003 OF 2026 – RULING Page 4 of 14

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to an appeal from a subordinate court to the Environment and Land Court. The present matter is not an appeal from the Environment and Land Court to the Court of Appeal. Rather, it is an intended first appeal from a subordinate court exercising jurisdiction in an environment and land matter to this Court. The applicable statutory framework is therefore distinct from the procedure governing appeals from this Court to the Court of Appeal. 11. Section 16A (1) of the Environment and Land Court Act, No. 19 of 2011 expressly provides that: “All appeals from subordinate courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against in matters in respect of disputes falling within the jurisdiction set out in Section 13(2) of the Environment and Land Court Act…” 12. Further, Section 79G of the Civil Procedure Act contains substantially similar provisions. It provides that every appeal from a subordinate court to the High Court shall be filed within thirty (30) days from the date of the decree or BUSIA ELC LA NO. E003 OF 2026 – RULING Page 5 of 14

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order appealed against, subject to exclusion of such period as the lower court may certify as having been requisite for the preparation and delivery of the decree or order. The proviso empowers the appellate court to admit an appeal out of time where good and sufficient cause for the delay is demonstrated. 13. In the case of Oduori v Nagemi [2024] KEELC 13542 (KLR), the court held that: “Section 16A (1) and (2) of the Environment and Land Court Act is couched in similar terms. It reads:(1)“All appeals from Subordinate Courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against in matters in respect of disputes falling within the jurisdiction set out in section 13(2) of the Environment and Land Court Act, provided that in computing time within which the appeal is to be instituted, there shall be excluded such time that the subordinate Court or tribunal may certify as having been requisite for the BUSIA ELC LA NO. E003 OF 2026 – RULING Page 6 of 14

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preparation and delivery to the Appellant of a copy of the decree or order.”(2)“An appeal may be admitted out of time if the Appellant satisfies the Court that he had a good and sufficient cause for not filing the appeal in time.” On the other hand, Section 95 of the Civil Procedure Act empowers this Court to enlarge, at it’s discretion, any time fixed by the law. Similarly, Order 50 Rule 6 of the Civil Procedure Rules provides that any time limited for doing any act may be extended by the Court.” 14. The procedural form of such an appeal is prescribed by Order 42 Rule 1(1) of the Civil Procedure Rules, which provides that every appeal to the High Court shall be in the form of a Memorandum of Appeal, signed in the same manner as a pleading. By virtue of the constitutional and statutory framework governing the ELC, including Section 16A of the Environment and Land Court Act, this procedure applies to appeals falling within the appellate jurisdiction of the Environment BUSIA ELC LA NO. E003 OF 2026 – RULING and Land Court. Page 7 of 14 The

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Memorandum of Appeal is therefore the document which institutes the appeal. 15. Order 42 Rule 1(2) further prescribes the contents of the Memorandum of Appeal. It must set forth, concisely and under distinct heads, the grounds of objection to the decree or order appealed against, without argument or narrative, with the grounds numbered consecutively. The requirement is substantive in the sense that the Memorandum identifies the decision challenged and the grounds upon which the appellate court is invited to interfere with it. 16. It is necessary to distinguish a Notice of Appeal from a Memorandum of Appeal, because the distinction is material to the present application. A Notice of Appeal is essentially a formal notification of an intention to challenge a decision before a superior appellate court. In the Kenyan civil appellate structure, the Notice of Appeal is principally utilized where a party intends to appeal to the Court of Appeal, and its procedure is governed by the Court of Appeal Rules. It does not constitute the substantive first appeal from a subordinate court to the Environment and Land Court. A BUSIA ELC LA NO. E003 OF 2026 – RULING Page 8 of 14

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Memorandum of Appeal, on the other hand, is the document by which a civil appeal from a subordinate court to the Environment and Land Court is instituted. It identifies the decree or order challenged and sets out the specific grounds upon which the appellant contends that the subordinate court erred. Order 42 Rule 1(1) expressly requires an appeal to be in the form of a Memorandum of Appeal. 17. The Court takes note that the Applicant herein filed a Notice of Appeal which was an error. But this act expressed his intention to challenge the impugned ruling. He also acted diligently by requesting typed proceedings and other requisite court documents. However, this does not mean that the Notice of Appeal filed instituted an appeal before this Court. The statutory requirement remained that the Applicant must file a Memorandum of Appeal within thirty days as prescribed by Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act unless leave is granted to extend time to file an appeal out of the statutory time limits. BUSIA ELC LA NO. E003 OF 2026 – RULING Page 9 of 14

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18. However, the Notice of Appeal having not instituted an Appeal does not necessarily dispose of the application for extension of time. Section 16A (2) of the Environment and Land Court Act and the proviso to Section 79G confer upon this Court discretion to admit an appeal out of time where the Applicant demonstrates good and sufficient cause. In the case of Mary Wanjiku Njoroge v Esther Muthoni Karaya [2020] KEELC 426 (KLR), the court held that: “The Court of Appeal in the case of Leo Sila Mutiso V. Rose Hellen Wangari Mwangi, (1999) 2 EA 231, laid down the parameters in extending time and stated thus; “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: first, 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 BUSIA ELC LA NO. E003 OF 2026 – RULING Page 10 of 14

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prejudice to the respondent if the application is granted” 19. Applying these principles to the present application, the Appellant has deponed that the impugned ruling was delivered on 11th December 2025, that he promptly lodged a Notice of Appeal on 15th December 2025, and that he requested for typed proceedings on the date the ruling was delivered. He further explains that the proceedings and the typed ruling had not been supplied, thereby impeding the preparation and filing of the Memorandum and Record of Appeal. These controverted averments by have evidence not been demonstrating specifically that the proceedings had in fact been supplied or that the delay was deliberate or inordinate. 20. While the Respondent has vigorously challenged the intended appeal by raising issues relating to the validity of the land sale agreement, the Tribunal award, alleged non-participation in previous proceedings and the Appellant’s conduct, those matters concern the substantive merits of the intended appeal. At this interlocutory stage, the Court is not called BUSIA ELC LA NO. E003 OF 2026 – RULING Page 11 of 14

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upon to determine whether the appeal is meritorious or otherwise. The Court’s inquiry is confined to whether the Appellant has laid a sufficient basis to warrant the exercise of its discretion to enlarge time 21. The Court is therefore satisfied that the explanation offered by the Appellant constitutes sufficient cause within the meaning of Section 79G of the Civil Procedure Act. There is no evidence that the delay was intentional, contumelious or calculated to obstruct the course of justice. Moreover, any prejudice that the Respondent may suffer can adequately be compensated by an award of costs, whereas denying the Appellant an opportunity to ventilate his appeal may permanently shut him out from the appellate process. 22. Accordingly, this Court finds that the Appellant has established sufficient cause for the delay and has met the legal threshold for the grant of leave to file and serve the Memorandum of Appeal out of time. The merits or otherwise of the intended appeal shall be determined at the hearing of the appeal and not at this preliminary stage. The Court therefore answers the issue in the affirmative. BUSIA ELC LA NO. E003 OF 2026 – RULING Page 12 of 14

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FINAL DISPOSITION AND ORDERS 23. Having carefully considered the Notice of Motion, the supporting affidavit, the Replying Affidavit, and the applicable law, this Court is satisfied that the Appellant has demonstrated good and sufficient cause to warrant the exercise of this Court’s discretion under Section 79G of the Civil Procedure Act. 24. Accordingly, the Notice of Motion dated 13 th February 2026 is merited and is hereby allowed on the following terms: a) Leave is hereby granted to the Appellant to file and serve the Memorandum of Appeal out of time. b) The Memorandum of Appeal be filed within 7 days of this Ruling. c) The costs of the Notice of Motion shall abide the outcome of the appeal. Ruling dated, signed and delivered in open Court on this 1st day of October 2026. C. MUGAMBI BUSIA ELC LA NO. E003 OF 2026 – RULING Page 13 of 14

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JUDGE 1ST OCTOBER 2026 BUSIA ELC LA NO. E003 OF 2026 – RULING Page 14 of 14

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