Wilson Okal Okandah & another v Philemon Ouma Ogweno & 3 others

b) Initial Court Directions (Hon. Justice John Walter Wanyonyi, August 28, 2026): i) The Court noted that the initial application did not comply with court vacation rules, and urgency was denied at that stage. ii) The Judge directed that the application and directions be served upon the Respondents and the Attorney General by close of business on August 31, 2026, with an affidavit of service filed by September 1, 2026. iii) The matter was scheduled for a formal court mention on September 2, 2026, at 9:00 AM. Core Prayers Sought: i) Leave to appeal out of time to the Minister for Lands against the Land Adjudication and Settlement Officer’s decision delivered on June 19, 2024, regarding Objection Nos. 69 and 232. ii) A stay of execution/implementation of the impugned adjudication decision pending the intended appeal. iii) A temporary injunction restraining the 1st and 2nd Respondents from erecting a fence on the disputed boundary pending the appeal. C. Summary of the Response Filed (Respondents' Case) i) Replying Affidavit: Sworn and filed by the 1st Respondent, Philemon Ouma Ogweno, on behalf of himself and the 2nd and 3rd Respondents. (The 4th Respondent entered an appearance through the Attorney General but filed no replying affidavit). ii) Active Participation & Knowledge: The 1st Respondent asserted that the Applicants fully participated in the objection proceedings and were physically present during the site visit on June 13, 2024, where the boundary was clearly marked. HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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iii)Inordinate Delay & Subsequent Review: The Respondents argued that the Applicants waited nearly two years before raising objections, meaning they should not benefit from their own inaction. They further noted that the Applicants initiated a subsequent review request in July/August 2026, wherein a reground visit on August 12, 2026, reconfirmed the original June 19, 2024 boundary position. iv)Jurisdictional Challenge: The Respondents contended that the ELC lacks the jurisdiction to grant leave to appeal out of time against a decision of the Land Adjudication Officer under Section 29 of the Land Adjudication Act (Cap 284). v) Alleged Misconduct & Trespass: The 1st Respondent accused the 1st Applicant of tampering with newly erected fences, cutting cedar posts, and committing trespass, which led to police involvement at Sena Police Station. D. Summary of Written Submissions & Note on Rejoinder a) Applicants' Submissions (Filed By P.D. Onyango & Company Advocates): i) Jurisdiction: Invoking Articles 159 and 162 of the Constitution, Section 13 of the Environment and Land Court Act, and Section 29 of the Land Adjudication Act, the Applicants submitted that because the Minister lacks statutory power to enlarge time, the ELC possesses expansive original and appellate jurisdiction under constitutional overriding objectives. ii) Leave to Appeal Out of Time: Relying on principles in Mutiso v. Mwangi and Chase Bank Ltd v. Diana Moraa Abuta, the Applicants argued that the delay (discovered fortuitously on June 4, 2026, via a letter to the Deputy County Commissioner, followed by local consultations) was not inordinate. They asserted high chances of success HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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because the Adjudication Officer ignored the 2022 elders' binding compromise, introduced unauthorized zigzag lines, disregarded Section 15 of the Land Adjudication Act, and placed boundaries over family graves. iii) Stay of Execution: Citing Butt v. Rent Restriction Tribunal [1979], the Applicants urged that allowing the Respondents to fence based on a flawed sketch would render the appeal nugatory and spark neighborhood conflict due to blocked access roads. iv) Respondents' Rejoinder / Reply Submissions: Note on Rejoinder: There is no record or mention of any rejoinder or reply submissions having been filed by the Respondents in response to the Applicants' written submissions. E. Issues for Determination The Court distilled four core issues for determination: 1. Whether the Court has the jurisdiction to grant leave and enlarge time to appeal to the Minister under Section 29 of the Land Adjudication Act (Cap 284). 2. Whether the Applicants satisfied the legal thresholds for leave to appeal out of time. 3. Whether grounds were established for a stay of execution/implementation of the decision pending appeal. 4. Who should bear the costs of the application. F. Analysis and Determination of Issues i) Issue No. 1: Jurisdiction (Integrating Comparative Jurisprudence from Kenya, Uganda, and South Africa) a) The Challenge: The Respondents contended that Section 29 of the Land Adjudication Act (Cap 284) establishes a strict 60-day limitation period for appeals to the Minister and declares the Minister's HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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ultimate decision final, thereby ousting the court’s intervention. b) Judicial Principle & Constitutional Mandate: The Environment and Land Court is anchored under Article 162(2)(b) of the Constitution of Kenya with seminary status of the High Court, possessing extensive original and appellate jurisdiction under Section 13 of the Environment and Land Court Act (No. 19 of 2011). Where an administrative tribunal or executive office is granted a quasi-judicial appellate role by statute but is given no enabling mechanism or discretion to extend time for an aggrieved party shut out by administrative default, superior courts of record retain inherent supervisory and remedial jurisdiction to prevent a failure of justice. G.Comparative Legal Jurisprudence: c) Kenya: As affirmed in David Nkoitoi Ole Kipintoi v. Director of Land Adjudication & Settlement & Another (Kilgoris ELC Petition 5 of 2021) and Nicholas Njeru v. Attorney General (Nyeri Civil Appeal No. 110 of 2011), statutory finality clauses cannot oust the constitutional oversight of courts to superintend administrative bodies, uphold natural justice, and grant procedural extensions under Articles 159(2)(d) and 162 of the Constitution. d) Uganda: In line with regional administrative law principles (Attorney General v. Silver Food Ltd), statutory tribunals exercising quasi-judicial functions remain subservient to the Constitution and judicial review HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING principles, ensuring

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technicalities do not deprive citizens of substantive justice. e) South Africa: Applying the doctrine articulated by the Constitutional Court of South Africa in Minister of Health and Another v. New Clicks South Africa (Pty) Ltd and Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the RSA, all public power and administrative action must be rational, lawful, and procedurally fair. A statutory framework foreclosing time extension without express wording runs counter to constitutional values, affirming that superior courts possess inherent jurisdiction to bridge procedural gaps to protect fundamental rights. f) Conclusion on Jurisdiction: This Court holds that it has full jurisdiction to entertain an application for leave to appeal out of time in respect of land adjudication disputes. Issue No. 2: Whether Leave Should be Granted to File the Appeal Out of Time a) The Governing Legal Test: The exercise of judicial discretion to extend time or grant leave to appeal out of time is unfettered, yet it must be exercised judiciously upon established principles. Guided by the landmark holding in Mutiso v. Mwangi [1999] 2 EA 231 and reinforced by modern jurisprudence (Prof. Paul Musili Wambua v. Attorney General), the court must weigh a constellation of factors: the length of the delay, the explanation for the delay, the merits or arguability (chances of success) of the intended appeal, and the degree of HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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prejudice the respondent would suffer if the that the extension is granted. H.Analysis of Length and Reason for Delay: a) The Respondents strongly argued Applicants were guilty of inordinate delay, pointing out that the impugned decision was rendered on June 19, 2024, following a site visit on June 13, 2024, and that the Applicants waited nearly two years before taking action. b) However, the Court evaluated the pivotal counterpleadings and evidence: the record discloses no concrete proof that the written adjudication decision was formally served or communicated to the Applicants at the time it was made. The Applicants maintained—corroborated by the 4th Respondent's correspondence—that they only discovered the existence of the decision fortuitously on June 4, 2026, through a letter addressed to the Deputy County Commissioner. c) Upon discovering the decision, the Applicants did not sleep on their rights; rather, they pursued amicable and local administrative channels (including visiting the lands office on July 31, 2026) before realizing that the Respondents intended to forcefully execute the boundary, leading them to file this application on August 26, 2026. d) Measured from the actual date of discovery (June 4, 2026) to the date of filing (August 26, 2026), the effective delay is approximately two months and three weeks. Citing principles applied in cases such as Chase Bank Ltd v. Diana Moraa Abuta, where a HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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delay is tracked from the moment a party acquires actual knowledge of a prejudicial decision rather than the date of secret or uncommunicated delivery, the Court found that the delay was neither inordinate nor inexcusable, satisfactorily accounted for having by been administrative silence. I. Arguability and Chances of Success: i. An applicant seeking leave out of time must demonstrate that the intended appeal is not frivolous or dead-on arrival. ii. The Court examined the complaints raised the Adjudication Officer's by core substantive Applicants: sketch map the introduces artificial zigzag bends that completely diverge from ground realities, disregards the mandatory protective provisions governing physical boundaries under Section 15 of the Land Adjudication Act, sweeps aside a binding compromise previously brokered by local elders in 2022, and awkwardly cuts through land to trap parental burial sites on the opponents' side. iii. These disclosures establish that the intended appeal raises weighty, triable issues that deserve proper ventilation and substantive determination before the appellate authority rather than being shut out at the threshold on technicalities. J. Prejudice to the Respondents: i. The Court assessed the balance of prejudice. The land adjudication process for the area remains HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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ongoing, and no final title deeds have been issued to the parties, as registry maps are still undergoing processing at the National Titling Centre in Nairobi. ii. The Respondents failed to demonstrate any legal or irreparable prejudice that cannot be compensated by appropriate judicial directions or conditions. K. Conclusion on Leave: Balanced against the constitutional imperative under Article 159(2)(d) of the Constitution—which commands courts to administer justice without undue regard to procedural technicalities—the scales of justice tilt decisively in favor of granting the Applicants an opportunity to ventilate their grievance on the merits. The prayer for leave to appeal out of time is therefore meritorious and granted. Issue No. 3: Stay of Execution and Implementation i. The Governing Legal Test for Stay: The principles governing the grant of an order for stay of execution or implementation of a decision pending appeal are well-established under civil procedure and appellate jurisprudence. A party seeking a stay must demonstrate that substantial loss may result if the order is not granted, that the application has been brought without unreasonable delay, and that the grant of security (where applicable) is met, anchored crucially upon the overarching objective of preserving the status quo so as not to render the eventual fruits of the appeal nugatory (as formulated in the locus classicus Butt v. Rent Restriction Tribunal [1979]). ii. Application to the Physical Realities on the Ground: HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING and Practical

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iii. The core dispute centers on a contentious boundary demarcation between adjacent land parcels (Parcel Nos. 1554 and 1555). The record reveals that the 1st Respondent actively sought to implement the Adjudication Officer's disputed sketch by forcefully erecting fences on the ground. iv. The Applicants demonstrated through their affidavits and submissions that permitting the implementation of the flawed adjudication sketch while an active appeal is pending before the Minister would radically alter the physical landscape on the ground. Specifically, it would cement an artificial boundary that cuts off their primary access road, blocks ingress and egress to their homestead, and places sensitive family burial sites on the opposing parcel. L. Preservation of the Subject Matter and Prevention of Nugatoriness: i. If the implementation of the administrative decision were allowed to proceed unchecked, changes—such as heavy fencing, physical clearing of vegetation, and construction—would take place, creating irreversible Consequently, even facts if the on the Minister ground. were to successfully uphold the appeal and set aside the Adjudication Officer's boundary map, the appellate process would be reduced to an academic exercise, rendering the appeal entirely nugatory. ii. Furthermore, the Court took judicial notice of the heightened local tensions and neighborhood friction already documented via police reports (Sena Police HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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Station OB records). Allowing one party to forcefully execute a disputed boundary while legal avenues are being pursued invites anarchy, breach of peace, and potential violence. iii. Conclusion on Stay: To maintain public order, preserve the status quo, and ensure that the impending ministerial appeal is not frustrated or rendered an empty shell, a protective order for stay of implementation and execution is both necessary and merited. Issue No. 4: Costs a) Court's Holding: Given that the dispute involves family members and neighboring land parcels, and that the delay was partly compounded by administrative communication lapses in transmitting the 2024 decision, costs of this application shall abide the outcome of the intended appeal before the Minister. M. Disposition and Final Orders 1. Leave to Appeal: The Applicants are granted leave to lodge their Memorandum of Appeal to the Minister for Lands out of time against the decision of the Land Adjudication and Settlement Officer, Mbita/Suba Sub-County, delivered on 19th June 2024 in respect of Objection Nos. 69 and 232. 2. Timelines: The Applicants shall file and serve their formal appeal before the Minister for Lands within thirty (30) days from the date of this ruling. 3. Stay of Execution & Status Quo: Pending the hearing and final determination of the intended appeal before the Minister, an order for stay of implementation and/or execution of the Land Adjudication and Settlement Officer’s decision delivered on 19th June 2024 is hereby issued. Consequently, all parties HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING

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shall maintain the status quo on the ground, and the Respondents are restrained from altering the physical boundaries or erecting new fences along the disputed line pending the appeal. 4. Costs: Costs of this application shall be in the intended appeal. DATED, SIGNED, AND DELIVERED VIRTUALLY AT HOMA BAY THIS 6TH DAY OF OCTOBER, 2026. HON. JUSTICE JOHN WALTER WANYONYI JUDGE, ENVIRONMENT AND LAND COURT AT HOMA BAY In the Presence of; 1. P.D Onyango for Applicant -Present 2. No appearance for Nyakwamba. 3. Court Assistant, HOMA BAY ELC CASE NO. ELC MIS APP. NO. E033 OF 2026 – RULING Ms.Awino.

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