Gathuru & 2 others v Komu & 3 others (Environment and Land Miscellaneous Application E041 of 2024) [2025] KEELC 7627 (KLR)
The bottom line
#A Kenyan court allowed a late appeal because the right to appeal outweighs an explainable delay that costs money can fix.
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 should be granted leave to appeal out of time against the judgment of the lower court delivered on 8th February 2024
- 2.Whether the Applicant is entitled to stay of execution of the lower court's judgment pending appeal
- 3.Whether the supporting affidavit sworn by counsel is inadmissible
Key legal issues
#Whether the delay of three months and 21 days in filing the appeal was excusable
The delay was inordinate and the explanation unconvincing, but it was condoned because the right of appeal is undoubted and the delay could be compensated by costs, and the applicant had taken preparatory steps
The application was filed almost four months after judgment. The court found the delay inordinate and the reasons for it unconvincing. However, it noted the applicant had applied for certified copies of proceedings and annexed a memorandum of appeal, evidencing steps toward the appeal, and that the respondent showed no prejudice. The discretion was therefore exercised in favour of granting leave, with costs as compensation.
Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
Security had not been given, and the respondent showed no prejudice; the court reluctantly granted stay conditional on a deposit of Kshs 100,000/= within 30 days
The court set out the three conditions in Order 42 Rule 6(2). It found the applicant had not given security or an undertaking, but the respondent also did not demonstrate prejudice if stay were granted. Balancing these, the court granted stay but imposed a security condition, with automatic lapse if not complied with.
Legal principles established
#- In an application for stay pending appeal, the applicant must satisfy Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security for due performance of the decree
- The court's discretion on extension of time cannot defeat an aggrieved litigant's undoubted right of appeal where delay can be compensated by costs
Court orders
#- 1.The Notice of Appeal and Memorandum of Appeal annexed and marked AKG 1 and AKG 2 are deemed as duly filed and served
- 2.The Applicant is granted a stay of execution pending the hearing of the Appeal
- 3.The Applicant shall deposit Kshs 100,000/= in a joint interest earning account in the names of his Lawyers and that of the Respondent as security for costs and other incidentals thereto within 30 days
- 4.Failure to fulfil order (iii) in 30 days will lead to automatic lapse of prayer (ii)
- 5.The costs of the application shall be borne by the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Githunguri
- Environment and Land Court Case No 11 of 2020
- Jurisdiction invoked
- Rule 79(G) and 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules
Relief refused
#Extension of leave without conditions / unconditional stay
The court conditioned the stay on security; failure to deposit the security would cause the stay to lapse automatically
Costs
The costs of this application shall be borne by the Applicant
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.
I do find a period of three months and 21 days to be inordinate and the reasons given for the delay not convincing. However, the Court's discretion cannot take away the undoubted right of a litigant to appeal if the delay, can be compensated by an award of costs.
In an application for stay pending appeal, an Applicant must comply with Order 42 Rule 6 (2) of the Civil Procedure Rules
The Applicant is granted a stay of execution pending the hearing of the Appeal.
The Notice of Appeal and Memorandum of Appeal annexed hereto and marked AKG 1 and AKG 2 are deemed as duly filed and served.
Issues in the judgment
#Submissions dates appear inconsistent with the hearing chronology: Applicant's submissions dated 12/05/2025 and Respondent's dated 12/09/2025, while the Respondent's Replying Affidavit was sworn on 12/09/2024
Rules cited as being under the Civil Procedure Act (Rule 79(G) and 95) appear to be a misdescription; the motion is expressed to be brought under provisions of the Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathuru & 2 others v Komu & 3 others (Environment and Land Miscellaneous Application E041 of 2024) [2025] KEELC 7627 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7627/eng@2025-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.