Osore v Okaka (Environment and Land Miscellaneous Application E029 of 2025) [2025] KEELC 7542 (KLR)
The bottom line
#The High Court in Siaya refused a landowner permission to appeal seven years late, confirming that ignoring a court case has serious consequences.
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 preliminary objection dated 3/09/2025 is properly raised
- 2.Whether the orders sought in the Notice of Motion dated 19/08/2025 should issue, principally whether the applicant has given sufficient reason for enlargement of time to file an appeal out of time under Section 79G of the Civil Procedure Act
Key legal issues
#Whether the preliminary objection was properly raised
The preliminary objection was not properly raised as its grounds were contentions requiring ascertainment of facts and could be argued as normal grounds of opposition.
Applying the Mukisa Biscuits test, a preliminary objection must be a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit. The grounds raised here required the court to ascertain facts, so they fell outside the definition and were struck out.
Whether sufficient reason exists for enlargement of time to appeal out of time under Section 79G
No sufficient reason was given for the seven-year delay; the application for leave to appeal out of time was refused.
Applying Section 79G and the principles in First American Bank v Shah and Daphne Parry v Carson, the court examined the explanation for the delay. The applicant, though acting in person, knew of the proceedings and was obliged to follow the suit. Respondent's annexures showed he knew of the 2018 judgment by 2022 through demand notices and affidavits of service. No bona fides were shown and the delay of over seven years was inexcusable.
The fate of the ancillary stay prayers
The stay prayers, being dependent on enlargement of time, fell away with the dismissal of the main prayer.
The stay of proceedings and execution sought was tied to the intended appeal from the 2018 judgment. Since leave to appeal out of time was refused, there was no basis to entertain the dependent prayers, and the application was dismissed in its entirety with costs to the respondents.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court
- A litigant who acts in person is nonetheless bound to follow up on proceedings in which he is a party; self-representation does not excuse inordinate delay
Court orders
#- 1.The preliminary objection is struck out
- 2.Leave to appeal out of time is declined; the court declines to exercise its discretion in favour of the application for grant of leave to file appeal out of time
- 3.The Notice of Motion dated 19/08/2025 is dismissed
- 4.Costs of the application to the respondents
- 5.The file shall be closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 50(1) and 159(2) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act; Section 79G of the Civil Procedure Act
Relief refused
#Leave to appeal out of time against the judgment delivered on 23rd May 2018 in Siaya MCELC No. 3 of 2014
No sufficient reason given for the inordinate delay of over 7 years; the applicant was aware of the proceedings and the demand notices showed knowledge of the judgment
Stay of proceedings and/or execution of the order of 29th July 2025 and the lower court decree
The stay prayers were dependent upon the order for enlargement of time, which was declined
Admission of the draft Memorandum of Appeal dated 19th August 2025 as duly filed
Fell with the dismissed application for enlargement of time
Costs
The application is dismissed with costs to the respondents.
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.
no suficient reason has been given for the delay of 7 years herein. The same in not excusable and I consequently decline to exercise my discretion in favor of the application for grant of leave to file appeal out of time.
it was incumbent upon him to follow up on the matter being a party who has been sued in the proceedings even if he was acting in person.
The application is hereby dismissed with costs to the respondents. The file shall be closed. Orders accordingly
The preliminary objection is therefore struck out.
Issues in the judgment
#Submissions of the respondents are described as 'the Respondents submissions' in the plural, though only one respondent is named on the record; the presence of counsel for 'the 1st Respondent' also suggests possibly more than one respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osore v Okaka (Environment and Land Miscellaneous Application E029 of 2025) [2025] KEELC 7542 (KLR)", Case Analysis (2025). Notice of Motion dated 19/08/2025 (arising from Siaya MCELC No. 3 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7542/eng@2025-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.