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ELCDismissedNot stated in judgment

Nakachi v Mbugwa (Environment and Land Miscellaneous Case E016 of 2024) [2025] KEELC 5108 (KLR)

Environment and Land Court
2 July 2025
1,512 words in judgment
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The bottom line

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A Kakamega court refused a man more time to appeal his eviction, ruling that blaming your advocate won't excuse ignoring your own case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega on a Notice of Motion dated 5th August 2024 by Peter Nakachi, the defendant in Kakamega ELC Case No. 887 of 2018, whose suit was concluded on 6th March 2024 by Hon. A. Odawo PM with eviction orders against him. He sought leave to file an appeal out of time under section 79G of the Civil Procedure Act, leave for a new firm of advocates to come on record, and a stay of execution. The respondent opposed, contending the delay was inordinate, the applicant was responsible for his own non-attendance, and the application sought to deny him the fruits of successful litigation. Applying the Salat principles, the court found the five-month delay unexplained: the applicant last attended court on 8th February 2022, was stood down during cross-examination, and failed to appear on 15th November 2023 when no further adjournment was to be granted. The court held that following up on one's case is the litigant's own business and his advocate cannot be blamed. The prayer for leave to change advocates was held superfluous because these proceedings are not a continuation of the concluded suit, rendering Order 9 Rule 9 inapplicable. The stay prayer was overtaken by the denial of leave to appeal. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant deserves the orders sought in the Notice of Motion dated 5th August 2024

Key legal issues

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01

Whether the applicant was entitled to extension of time to file appeal out of time under section 79G of the Civil Procedure Act

Holding

Extension of time refused; the five-month delay was unexplained to the court's satisfaction

Reasoning

Applying the Salat principles, the applicant bore the burden of explaining the delay. Judgment was delivered on 6th March 2024 and the application filed on 5th August 2024. The applicant last attended court on 8th February 2022, was stood down, and failed to attend on 15th November 2023. Blaming his advocate was inadequate; he did nothing himself between February 2022 and March 2024.

p. 3
02

Whether leave was required for change of advocates under Order 9 Rule 9

Holding

Prayer superfluous; Order 9 Rule 9 inapplicable since no judgment has been delivered in these proceedings

Reasoning

Order 9 Rule 9 applies where judgment has been delivered in the matter in which the change of advocates is sought. These proceedings before the ELC are not a continuation of Kakamega ELC No. 887 of 2018; hence the provision does not apply.

p. 3
03

Whether stay of execution should issue

Holding

Prayer overtaken by denial of leave to appeal

Reasoning

Stay was sought pending undisclosed proceedings; since the extension of time application failed, there is no pending appeal in respect of which execution could be stayed.

p. 4

Legal principles established

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  • A litigant cannot blame his advocate for failure to follow up his own case when seeking extension of time

Court orders

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  1. 1.The application dated 5th August 2024 is dismissed
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court (Kakamega)
Kakamega ELC Case No. 887 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal from subordinate court)

Relief refused

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Extension of time to file appeal out of time

Inordinate unexplained delay of five months; applicant wrongly blamed his advocate

p. 3

Leave for change of advocates (Order 9 Rule 9)

These proceedings are not a continuation of the suit; no judgment has been delivered in them

p. 3

Stay of execution

Overtaken by denial of leave to appeal out of time

p. 4

Costs

Costs of the application to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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
p. 3Discretion to extend time (Salat principles)
In the premises, the court finds no merit in the application dated 5th August 2024 and the same is hereby dismissed with costs to the respondent.
p. 4Final orders - dismissal with costs
Following up on the case and proceedings was entirely his business and he cannot be heard to blame his advocate.
p. 3Duty of litigant to follow up own case

Issues in the judgment

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minor

The judgment describes the applicant as desiring to substitute 'Shitsama & Co. Advocates' yet the respondent states, and the court notes, the applicant was represented at trial by 'Shivega & Co. Advocates' - the firm actually replaced is inconsistently identified

minor

Prayer (f) for stay of execution duplicates prayer (e) almost verbatim

minor

Judgment at paragraph 16 refers to 'the plaintiff asked for stay' although the moving party is the applicant/defendant in the underlying suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nakachi v Mbugwa (Environment and Land Miscellaneous Case E016 of 2024) [2025] KEELC 5108 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5108/eng@2025-07-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.