Cheptoo (Suing as Administrator of the Estate of Dinah Cheptum Ng’etich) v Onoka (Land Case Appeal E007 of 2024) [2025] KEELC 3204 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's bid to appeal 12 months late, stressing that unexplained delay defeats even a potentially strong case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has proved the conditions set for grant of leave to file an appeal out of time
- 2.Whether the applicant has proved the conditions set for grant of orders of stay of execution
- 3.Whether the applicant has proved the conditions set for grant of an order of injunction
- 4.Who should bear the costs of the instant application
Key legal issues
#Whether the delay of over 12 months in seeking leave to appeal out of time was excusable
The delay was inordinate and inexcusable; no reasonable explanation was advanced and the application was an afterthought
The judgment sought to be appealed was delivered on 12th April 2023, yet the application was lodged on 15th May 2024, over 12 months later. Applying the Salat criteria and the Njoroge v Kimani principles, the court found no reasonable and acceptable explanation for the delay, and noted that costs at the trial had been assessed with decree and certificate of costs drawn, indicating the application was an afterthought. Prospects of success cannot cure an unexplained delay.
Whether stay of execution and injunction could issue pending the intended appeal
Neither order could issue because the suit land had been transferred to a non-party and leave to appeal out of time had not been granted
Order 42 Rule 6(2) requires substantial loss, no unreasonable delay, and security. The applicant conceded the suit land had been transferred to Chirchir Tenai, a non-party, rendering the application effectively moot. Further, since leave to appeal out of time was refused, no stay of execution could issue, and consequently an injunction could not be granted either.
Legal principles established
#- An application for extension of time must show good and substantial reasons for the delay and prima facie good cause why the intended appeal should be heard
- Without a reasonable and acceptable explanation for the delay, prospects of success are immaterial in a condonation application
Court orders
#- 1.The application by way of a Notice of Motion dated 8th May 2024 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 40 of the Constitution of Kenya, Sections 79G and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, 2010
Relief refused
#Leave to appeal out of time against the judgment of 12th April 2023
Delay in excess of 12 months was inordinate and unexplained
Stay of execution of the judgment dated 12th April 2023
Suit land already transferred to a third party not party to the proceedings, and no leave to appeal out of time granted
Temporary injunction against dealings in LR. Nandi/Kamobo/4174
Cannot issue where leave to appeal out of time has not been granted
Costs
Dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Wherefore, the application by way of a Notice of motion dated 8th May 2024, be and is hereby dismissed with costs to the respondent.
Therefore, I find and hold that the delay in mounting this application is inexcusable and has not been satisfactorily explained.
it is my considered view that the delay in excess of 12 months is inordinate. No reasonable and acceptable explanation for the delay has been advanced herein.
…Excusable delays are delays that are unforeseeable and beyond the control of the party. Non- excusable delays are delays that are foreseeable or within the party's control…
Issues in the judgment
#Judgment refers to the trial magistrate as 'the Learned Judge' then self-corrects
Case number of the present application before the ELC is not stated in the judgment; only the trial court case number appears
The judgment titles the movant 'appellant/applicant' though leave to appeal had not yet been granted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheptoo (Suing as Administrator of the Estate of Dinah Cheptum Ng’etich) v Onoka (Land Case Appeal E007 of 2024) [2025] KEELC 3204 (KLR)", Case Analysis (2025). Kapsabet CMC ELC No. E108 of 2021 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3204/eng@2025-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.