Henry Ouko Opata v Moses Ochieng' Amolo (Suing as Legal Representative and Administrator of the Estate of Joram Amolo Gumba – Deceased)

4. That pending the hearing of this application inter partes, this Honourable Court be pleased to grant an order staying eviction, sale and/or transfer of land parcel number Kisumu/East Seme-Rata/1750 to any other third party. 5. That pending the hearing and final determination of this application and the intended appeal, this Honourable Court be pleased to grant an order staying eviction, sale and/or transfer of land parcel number Kisumu/East Seme-Rata/1750 to any other third party. 6. 2. That costs of this application be in the cause. The application arises from the judgment of Hon. E. N. Mwenda, Principal Magistrate, delivered on 30th January 2025 in Kisumu Chief Magistrate’s Court ELC Case No. 48 of 2020, Moses Ochieng Amolo (Suing as Legal Representative and Administrator of the Estate of Joram Amolo Gumba – Deceased) v Henry Ouko Opata. In that judgment, the trial court found that the Applicant had trespassed onto land parcel No. Kisumu/East Seme-Rata/1750 (hereinafter “the suit property”), directed RULING MISC E056 OF 2026 2

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him to vacate and surrender possession within 180 days failing which an order of eviction would issue, restrained him permanently from the suit property, and awarded the Respondent general damages of Kshs. 100,000/= together with interest and the costs of the suit. 3. When the application was placed before this court under certificate of urgency on 11th September 2026, the court granted prayer 2 and the firm of D.E.K. Matete & Co. Advocates was granted leave to come on record for the Applicant. Prayer 1 is spent, and prayer 4, being limited to the period pending the inter partes hearing, is likewise spent. What remains for determination are prayers 3, 5 and 6. The Applicant’s case 4. The application is premised on the grounds set out on its face and on the supporting affidavit sworn by the Applicant on 10th September 2026. The Applicant deposes that he is aggrieved by the decision of the trial court and intends to appeal against it, and that he has appointed the firm of D.E.K. Matete & Co. Advocates to act for him in the intended appeal. He acknowledges that the time for filing RULING MISC E056 OF 2026 3

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an appeal has expired and that the leave of the court is therefore necessary. 5. As to the reasons for the delay, the Applicant deposes that the judgment was slated for delivery on 30th January 2025; that he was appearing in person before the trial court and was not informed of the judgment date by the Respondent’s counsel; that even though he was not served with the judgment date, he was indisposed on 30th January 2025 and could not attend court; and that he was served with the judgment and decree on 8th September 2026 by a village elder who asked him to vacate his home. He further deposes that he is a disabled man of over 70 years who has been in and out of hospital on account of illness. 6. The Applicant contends that he has an arguable appeal with high chances of success and annexes a draft Memorandum of Appeal (annexure “HOO1”). The intended grounds are, in summary, that the learned magistrate erred in failing to find that the Respondent’s claim to a portion of the suit property was defeated by adverse possession; in failing to find that the Respondent’s interest RULING MISC E056 OF 2026 4

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in that portion was extinguished upon the expiry of twelve years; in failing to find that the Respondent’s claim was statute-barred; in failing to evaluate the evidence on record; and in failing to resolve the contradictions in the evidence in the Applicant’s favour. 7. Counsel for the Applicant asserts that the Respondent’s agents have been visiting a portion of the suit property with persons unknown to the Applicant; that there is credible information that the Respondent has received a deposit for the sale of the portion occupied by the Applicant; that the Applicant has lived on the land all his life; and that unless eviction and sale are stayed, the intended appeal will be rendered nugatory. The Applicant contends that no prejudice will be occasioned to the Respondent and that the rules of natural justice and his constitutional right to a fair hearing demand that the orders be granted. The Respondent’s case 8. The Respondent, Moses Ochieng’ Amolo, opposes the application through a replying affidavit sworn on 14th September 2026. He deposes that the application is RULING MISC E056 OF 2026 5

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misconceived, lacking in bona fides and brought in bad faith, and that it does not meet the threshold for the grant of the orders sought. 9. The Respondent deposes that the suit before the trial court was filed on 1st July 2020 and that, upon service of summons, the Applicant appointed Mr. Glenn Odino of Yonga Odhiambo & Associates, who filed a memorandum of appearance on 13th July 2020 and represented the Applicant through to the conclusion of the suit. In support, he annexes (as “MOA 1”) the memorandum of appearance, correspondence exchanged between the two firms of advocates, and the Applicant’s written submissions on the Respondent’s bill of costs. He further deposes that the Applicant testified before the trial court on 14th November 2024, his evidence being led by his advocate, and that the Applicant’s claim to have acted in person is therefore untruthful. 10. The Respondent sets out the post-judgment chronology as follows: judgment was delivered on 30th January 2025; his bill of costs was taxed by a ruling delivered on 30th April 2025; he thereafter filed an application dated 18th August RULING MISC E056 OF 2026 6

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2025 seeking eviction orders, which was allowed by a ruling delivered on 30th September 2025. He deposes that throughout this process the Applicant, through his advocates, was duly notified, and annexes the judgment and the two rulings (as “MOA 2”). 11. The Respondent avers that some twenty-one months have passed since the judgment; that the Applicant admits he knew that judgment was due on 30th January 2025; that no medical records have been produced to support the alleged illness; and that the Applicant does not explain what steps he took to establish the outcome of the judgment after he recovered. He contends that the Applicant has at all times been aware of the judgment and is now aggrieved only because the land has been fenced off. 12. The Respondent deposes that the suit property belongs to his late father, Joram Amolo Gumba, and constitutes the family’s ancestral home; that the family has no intention of selling any part of it; that the family intends to complete succession and distribute the land among the beneficiaries, which can only be done once the whole RULING MISC E056 OF 2026 7

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parcel is fenced; and that the portion previously occupied by the Applicant is earmarked for one of the beneficiaries. He annexes a copy of the title (as “MOA 3”). 13. On the merits of the intended appeal, the Respondent contends that the grounds are frivolous since the Applicant did not claim any portion of the suit property by adverse possession before the trial court and cannot raise such a claim for the first time on appeal. He further deposes that the several survey exercises conducted on the disputed area confirmed that the Applicant had encroached on the suit property, and annexes the survey reports (as “MOA 4”). 14. Finally, the Respondent deposes that the application has been overtaken by events because the Applicant has already been evicted from the portion he occupied, the whole parcel is now fenced and the Applicant does not occupy any part of it; that the only stay the court could grant relates to the recovery of costs, which the Respondent has not commenced; and that the Applicant has come to court with unclean hands and is undeserving of the court’s discretion. RULING MISC E056 OF 2026 8

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Submissions 15. The application was canvassed by way of written submissions. The Applicant filed submissions dated 6th October 2026 through D.E.K. Matete & Co. Advocates, while the Respondent filed submissions of the same date through Kouko & Odero Advocates LLP. The Applicant did not file a further affidavit in response to the replying affidavit. The Applicant’s submissions 16. Counsel for the Applicant submitted that the delay in filing the appeal was occasioned by the fact that the Applicant is disabled and aged, being over 70 years old, and has been indisposed. It was submitted that the Applicant’s previous counsel stopped communicating with him even before the judgment was delivered, and that the record of the trial court would show that counsel did not attend court to take the judgment. Counsel further submitted that the Applicant only realised on 28th August 2026, when a village elder served him with documents, that judgment had long been entered against him and that he was to be RULING MISC E056 OF 2026 9

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evicted from a home in which he has lived for over fifty years. 17. Relying on the proviso to Section 79G of the Civil Procedure Act, counsel submitted that an appeal may be admitted out of time where the appellant satisfies the court that he had good and sufficient cause for not filing it in time. Reference was made to Lucy Wangari Mwangi & 6 others v Jacinta Kamuyu Githungu & another [2021] KEHC 4840 (KLR), in which the court cited Mwangi v Kenya Airways Ltd [2003] eKLR for the proposition that the matters to be considered are the length of the delay, the reason for the delay, possibly the chances of the appeal succeeding, and the degree of prejudice to the respondent. Counsel submitted that the grant of a stay of execution and of extension of time is discretionary, upon the court being satisfied that the application has been made without unreasonable delay and that any delay has been satisfactorily explained. 18. Counsel submitted that the state of the Applicant and the evidence before the subordinate court show that there was miscommunication between the Applicant and his RULING MISC E056 OF 2026 10

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counsel, and that the Applicant is aged and disabled. Invoking Section 107 of the Evidence Act, counsel submitted that the Applicant was physically before the trial court, which had the opportunity to observe his age and disability, and that the record of the subordinate court would also bear out the state of the relationship between the Applicant and his previous counsel, particularly on the date the judgment was delivered. In conclusion, counsel submitted that the intended appeal, being a first appeal, raises serious issues of law and fact as shown in the draft memorandum of appeal (annexure “HOO1”); that the Applicant ought not to be locked out of the seat of justice; and that the Respondent will suffer no prejudice if the application is allowed. The Respondent’s submissions 19. Counsel for the Respondent indicated that, as at the time of filing, the Respondent had not been served with the Applicant’s submissions, and relied entirely on the replying affidavit filed on 14th September 2026. On the applicable principles, counsel relied on Nicholas Kiptoo Arap Korir RULING MISC E056 OF 2026 Salat v Independent Electoral and 11

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Boundaries Commission & 7 others [2014] eKLR and on Paul Musili Wambua v Attorney General & 2 others [2015] eKLR, in which the Court of Appeal held that, although the discretion to extend time is unfettered, it must be exercised upon reason and not on whim or caprice, having regard to the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the respondent. 20. Counsel submitted that the judgment was delivered on 30th January 2025, over twenty-one months before the application, a period too long to be extended. It was submitted that the Applicant had not been truthful with the court: he was represented by counsel from the commencement of the suit through to the end of the trial, as set out in the replying affidavit; and even on his own account he knew that judgment was due on 30th January 2025, yet he produced no medical records in support of the alleged illness and did not explain what steps he took to establish the outcome of the judgment after he recovered. Counsel contended that the Applicant was all along aware of the judgment, that the application was RULING MISC E056 OF 2026 12

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prompted only by the Respondent’s family commencing the fencing of the land, and that no reason for the delay had been advanced. 21. Counsel further submitted that the remedies sought are equitable, and that a litigant who is found to have misled the court must be turned away under the maxim that he who comes to equity must come with clean hands. Reliance was placed on Esther Nugari Gachomo v Equity Bank Limited [2019] KEHC 7891 (KLR), where the court, citing Caliph Properties Limited v Barbel Sharma & another [2015] eKLR, held that an application for equitable relief must fail the moment the court finds that the applicant’s hands are tainted. 22. On prejudice, counsel submitted that the suit property belongs to the estate of the Respondent’s late father and is the family’s ancestral home, which the family has no intention of selling, and that the family would be unable to complete succession and distribute the property while the matter remains in court, since it would be improper to distribute a disputed portion to a beneficiary of the estate. Finally, counsel submitted that the intended appeal is RULING MISC E056 OF 2026 13

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frivolous because the Applicant did not claim any portion of the suit property by adverse possession before the trial court and cannot do so for the first time on appeal, and that the application has in any event been overtaken by events, the Applicant having been evicted and the whole parcel fenced. Counsel urged the court to dismiss the application with costs. Issues for determination 23. I have carefully considered the application, the affidavits on record together with their annexures, and the written submissions of both parties. In my view, the following three issues arise for determination: (i) Whether the Applicant has demonstrated good and sufficient cause to warrant the grant of leave to appeal out of time. (ii) Whether an order of stay of eviction, sale or transfer of the suit property pending the intended appeal should issue. (iii) Who should bear the costs of the application. RULING MISC E056 OF 2026 14

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Analysis and determination (i) Whether the Applicant has demonstrated good and sufficient cause to warrant leave to appeal out of time 24. The appellate jurisdiction of this court over decisions of subordinate courts in matters within its jurisdiction is conferred by Section 13(4) of the Environment and Land Court Act. The time for lodging such appeals is governed by Section 79G of the Civil Procedure Act, which provides as follows: “Every appeal from a subordinate court to the High Court shall be filed 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 to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 25. The power to extend time is discretionary, and the discretion must be exercised judiciously and on the basis RULING MISC E056 OF 2026 15

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of material placed before the court. The Supreme Court in Nicholas Kiptoo Arap Korir Salat (Supra), relied upon by the Respondent, laid down the following guiding principles: “1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; 5. Whether there will be any prejudice suffered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 26. Similarly, the Court of Appeal in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 held as follows: RULING MISC E056 OF 2026 16

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“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 prejudice to the respondent if the application is granted.” 27. The burden of laying that basis rests squarely on the applicant. As the Privy Council observed in Ratnam v Cumarasamy & another [1964] 3 All ER 933: “The rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.” 28. The same principles were restated in Wambua (Supra) RULING MISC E056 OF 2026 and in Lucy Paul Wangari Musili Mwangi 17

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(Supra), relied upon by the parties. I now apply them to the present application. Length of the delay 29. The judgment was delivered on 30th January 2025. The thirty-day period for lodging an appeal therefore lapsed on or about 1st March 2025. The present application was filed on 10th September 2026, some 558 days, or a little over eighteen months, after the period lapsed, and about nineteen months after the judgment. The Respondent’s computation of twenty-one months is somewhat overstated, but nothing turns on the difference. On any measure, the delay is inordinate. While there is no fixed period beyond which a delay becomes inexcusable, the longer the delay, the more cogent, candid and complete the explanation required of the applicant to account for it. Reasons for the delay 30. The Applicant offers three reasons for the delay: that he was acting in person before the trial court and was not informed of the judgment date; that he was unwell and is elderly and disabled; and that he only learnt of the RULING MISC E056 OF 2026 18

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judgment when it was served upon him on 8th September 2026. I will consider each in turn. 31. On the first reason, the record placed before me tells a very different story. Annexure “MOA 1” contains a memorandum of appearance filed on behalf of the Applicant, as defendant, by Yonga Odhiambo & Associates, giving that firm’s address as his address for service. It also contains a letter dated 6th August 2021 addressed to the Chief Magistrate and signed by Yonga Odhiambo & Associates as “Advocates for the Defendant” and by Cecil Kouko & Associates for the Plaintiff, recording a consent for the survey of parcels Nos. 1748 and 1750, and a letter dated 13th February 2023 from Yonga Odhiambo & Associates on the sharing of survey costs. Most tellingly, the annexure contains the Defendant’s written submissions dated 28th March 2025, drawn and filed by Yonga Odhiambo & Associates as “Advocates for the Defendant”, opposing the Respondent’s bill of costs. Those submissions expressly state that “the amount awarded in judgment was Ksh 100,000”. The ruling on taxation delivered on 30th April 2025 (part of annexure RULING MISC E056 OF 2026 19

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“MOA 2”) confirms that the bill of costs was opposed by the Defendant’s written submissions dated 28th March 2025. 32. It follows that by 28th March 2025, a mere fifty-seven days after the judgment, the Applicant was, through advocates on record for him, not only aware of the judgment but actively engaging with its consequences. The knowledge of an advocate acting within the scope of his instructions is the knowledge of the client. The Applicant’s claim that he was acting in person and first learnt of the judgment on 8th September 2026 is therefore contradicted by documents emanating from his own advocates. The Applicant did not file any further affidavit to controvert annexures “MOA 1” and “MOA 2”. 33. Notably, the Applicant’s written submissions no longer maintain that he acted in person. Counsel now submits that the Applicant’s previous advocate stopped communicating with him before the judgment and did not attend court to take it. That shift in position is itself telling. More importantly, the new explanation is not borne out by the record: the written submissions dated 28th March RULING MISC E056 OF 2026 20

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2025 show that the same advocates remained actively engaged on the Applicant’s behalf after the judgment. In any event, submissions are not evidence and cannot supply facts that ought to have been deposed to on oath. Even if there had been a breakdown in communication between the Applicant and his advocate, it was incumbent upon the Applicant, as the owner of the litigation, to follow up on his own case. He has not shown any step he took to do so over the ensuing eighteen months. 34. There is also an inconsistency within the Applicant’s own affidavit. He deposes, on the one hand, that he was not informed of the date of the judgment and, on the other, that he knew the judgment was slated for 30th January 2025 but could not attend court because he was indisposed. The two averments sit uneasily together. What is clear, however, is that on his own account the Applicant knew when judgment was to be delivered, yet he offers no explanation of any step he took thereafter to establish its outcome. The Applicant is not even consistent as to when he says he learnt of the judgment: his affidavit places it on RULING MISC E056 OF 2026 21

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8th September 2026, while his submissions place it on 28th August 2026. 35. On the second reason, the Applicant has not annexed a single medical document in support of his averment that he was unwell or that he has been in and out of hospital. The court is mindful of, and sympathetic to, the Applicant’s advanced age and the disability he describes. Those circumstances, however, cannot take the place of evidence, nor do they relieve a litigant of the duty to explain the delay. Even if it were accepted that the Applicant was unwell on 30th January 2025, that would not account for the ensuing eighteen months, during which his advocates were actively participating in the post-judgment proceedings. Counsel’s reliance on Section 107 of the Evidence Act does not aid the Applicant. That provision places the burden of proving a fact on the person who asserts it. It was for the Applicant to place before this court evidence of the illness on which he relies, not to invite the court to infer it from what the trial court may have observed of him. RULING MISC E056 OF 2026 22

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36. On the third reason, the ruling of the trial court delivered on 30th September 2025 records that the Respondent’s application dated 18th August 2025 seeking the Applicant’s eviction was served upon the Applicant, that an affidavit of service was filed, and that the application was unopposed. The Applicant is entirely silent on that application and on the eviction order that followed. A litigant who seeks the exercise of the court’s discretion in his favour owes the court a duty of full and frank disclosure. The Applicant’s omission to disclose that he was represented by counsel throughout, that his advocates participated in the taxation of costs after the judgment, and that eviction proceedings had been taken against him, is a material non-disclosure that weighs heavily against him. I agree with the Respondent’s submission that extension of time, being an equitable remedy, is available only to a deserving party, and that a party who has not been candid with the court cannot expect the court’s discretion to be exercised in his favour. SeeEsther Nugari Gachomo (Supra). RULING MISC E056 OF 2026 23

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37. In the circumstances, I find that the Applicant has not offered a plausible or satisfactory explanation for the delay. Rather, the explanations offered are, in material respects, contradicted by the record. Whether the intended appeal is arguable 38. At this stage, the court is not called upon to determine the merits of the intended appeal, but only to consider, on a prima facie basis, whether it raises an arguable issue that deserves the consideration of the appellate court. An arguable appeal is not one that must necessarily succeed; it is one that is not frivolous. 39. The first three intended grounds are premised on adverse possession and limitation. The judgment of the trial court, however, records that the Applicant’s defence was a denial of the alleged encroachment, his case being that all the activities complained of took place on his late father’s land, parcel No. Kisumu/East Seme-Rata/1748. Nothing in the record before me suggests that the Applicant counterclaimed for the disputed portion by adverse possession or pleaded limitation as a defence. It is settled that parties are bound by their pleadings and that an RULING MISC E056 OF 2026 24

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appellate court will not ordinarily determine an issue that was neither pleaded nor canvassed at the trial. See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR. While a claim to adverse possession may be raised by way of defence and counterclaim, it must nonetheless be specifically pleaded and proved. See Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR. 40. The fourth and fifth intended grounds are general complaints about the evaluation of the evidence, and the fifth seeks the “benefit of doubt”, a criminal law standard that has no application to a civil claim determined on a balance of probabilities. The judgment shows that the finding of trespass rested on the evidence of two surveyors and the Land Registrar, which the Applicant did not rebut with any expert evidence of his own. That the intended appeal would be a first appeal does not, of itself, render it arguable. Without making any final determination on the matter, I am not persuaded that the intended appeal raises an arguable issue of substance. In RULING MISC E056 OF 2026 25

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any event, even an arguable appeal cannot cure an inordinate delay that has not been satisfactorily explained. Prejudice to the Respondent 41. The Respondent has had the benefit of the judgment for over nineteen months. In that period, his costs have been taxed, an eviction order has been obtained, and he deposes that the decree has been executed and the suit property fenced in readiness for distribution among the beneficiaries of the estate. Reopening the matter at this stage would subject the Respondent to renewed litigation over a dispute that has, to all intents and purposes, been concluded. It is in the public interest that litigation comes to an end: interest reipublicae ut sit finis litium. On the other hand, the Applicant has had his day in court; he was represented by counsel and testified at the trial. The Applicant’s bare assertion that the Respondent will suffer no prejudice does not engage with any of these matters. 42. Weighing all these factors together, I am not satisfied that the Applicant has demonstrated good and sufficient cause for not filing his appeal in time. He has not laid a basis RULING MISC E056 OF 2026 26

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upon which the court can exercise its discretion in his favour. Prayer 3 therefore fails. (ii) Whether an order of stay of eviction, sale or transfer of the suit property pending the intended appeal should issue 43. Prayer 5 seeks a stay pending the hearing and determination of this application and of the intended appeal. With leave to appeal out of time having been declined, there is no intended appeal whose subject matter the court could preserve, and the prayer must necessarily fail. 44. Even if I were wrong on the first issue, I would not have granted the stay. Whether the prayer is considered under Order 42 Rule 6 of the Civil Procedure Rules or under the court’s inherent power under Section 3A of the Civil Procedure Act, an applicant must demonstrate that substantial loss may result unless the order is made, that the application has been made without unreasonable delay, and must offer such security as the court may order for the due performance of the decree. The Applicant has not addressed any of these requirements and has offered RULING MISC E056 OF 2026 27

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no security. His allegation that the Respondent has received a deposit for the sale of a portion of the suit property is wholly unsupported, and the Respondent deposes that the family has no intention of selling the land, which is ancestral land held for distribution among the beneficiaries of the estate. 45. Further, the Respondent deposes that the Applicant has already been evicted and that the whole parcel has been fenced. That averment has not been controverted by any further affidavit, and the Applicant’s submissions do not address it. An order of stay is intended to preserve the status quo pending appeal. It is not designed to reverse an act that has already been carried out, and the court cannot stay what has already been executed. Prayer 5 therefore fails. (iii) Who should bear the costs of the application 46. Under Section 27 of the Civil Procedure Act, costs are in the discretion of the court and ordinarily follow the event. The Respondent has successfully resisted the application, and I see no reason to depart from the general rule. RULING MISC E056 OF 2026 28

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Disposition 47. In the upshot, I make the following orders: I. The Notice of Motion dated 10th September 2026 is hereby dismissed. II. The Respondent shall have the costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 8TH DAY OF OCTOBER 2026. E. K. WABWOTO JUDGE In the presence of: Mr. Matete for the Applicant. Mr. Kouko for the Respondent. Court Assistant: Joanne Omondi. RULING MISC E056 OF 2026 29

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