Nakachi v Mbugwa (Environment and Land Miscellaneous Case E016 of 2024) [2025] KEELC 5108 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant deserves the orders sought in the Notice of Motion dated 5th August 2024
Key legal issues
#Whether the applicant was entitled to extension of time to file appeal out of time under section 79G of the Civil Procedure Act
Extension of time refused; the five-month delay was unexplained to the court's satisfaction
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.
Whether leave was required for change of advocates under Order 9 Rule 9
Prayer superfluous; Order 9 Rule 9 inapplicable since no judgment has been delivered in these proceedings
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.
Whether stay of execution should issue
Prayer overtaken by denial of leave to appeal
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.
Legal principles established
#- A litigant cannot blame his advocate for failure to follow up his own case when seeking extension of time
Court orders
#- 1.The application dated 5th August 2024 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Extension of time to file appeal out of time
Inordinate unexplained delay of five months; applicant wrongly blamed his advocate
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
Stay of execution
Overtaken by denial of leave to appeal out of time
Costs
Costs of the application 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.
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
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.
Following up on the case and proceedings was entirely his business and he cannot be heard to blame his advocate.
Issues in the judgment
#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
Prayer (f) for stay of execution duplicates prayer (e) almost verbatim
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.