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ELCPartially AllowedKapsabet MCELC No E075 of 2024 (intended appeal from ruling of 17th April 2025)

Tanui v Saina (Environment and Land Miscellaneous Application E017 of 2025) [2025] KEELC 7794 (KLR)

Environment and Land Court of Kenya
11 November 2025
1,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court at Kapsabet allowed a land buyer extra time to appeal and paused the case against him, stressing everyone deserves a hearing.

What this practically means

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Executive summary

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The Applicant, by a Notice of Motion dated 13th May 2025, sought leave to appeal, extension of time, and stay of execution against the ruling of Hon. Kibet Sambu, Chief Magistrate, delivered on 17th April 2025 in Kapsabet MCELC No E075 of 2024, which struck out his suit and upheld the Respondent's preliminary objection. The Applicant claimed he purchased the suit land, LR No Nandi/Baraton/686, from the original registered owner, and that his delay was excusable and would not prejudice the Respondent. The Respondent opposed, asserting the intended appeal was incompetent and without prospects, and filed a preliminary objection dated 30th July 2025 contending that the application offended Order 43 of the Civil Procedure Rules and that the court lacked jurisdiction absent leave from the court that made the order. The court framed three issues: sustainability of the preliminary objection, merit of the application, and the orders to issue. Guided by Mukisa Biscuit on preliminary objections, sections 75 and 79G of the Civil Procedure Act, and the Supreme Court's principles in Salat on extension of time as a discretionary equitable remedy, the court found special circumstances in the Applicant's purchase of the land and relied on the fundamental right to be heard and to access justice under Articles 48, 50(1) and 25(c) of the Constitution. It dismissed the preliminary objection, allowed the application in terms of prayers 2, 3 and 4, granted leave and extension of time, and stayed execution pending the intended appeal, with costs to abide the appeal's outcome and leave conditional on filing the appeal within fourteen days.

Questions the Court framed

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

  1. 1.Whether the preliminary objection is sustainable.
  2. 2.Subject to issue (a) above, is the application is meritorious?
  3. 3.The orders to issue for the ends of justice herein.

Key legal issues

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01

Whether the preliminary objection against the competency of the application was sustainable

Holding

The preliminary objection was dismissed; the court held it could exercise its special and inherent powers for the ends of justice and that the right to be heard and access to justice under Articles 48, 50(1) and 25(c) favoured the Applicant.

Reasoning

The court noted the application was brought under Order 43 of the CPR and sections 3 and 3A of the CPA, under which it may exercise special and inherent powers. It held that the right to be heard is fundamental and that the Applicant deserved access to justice and a fair hearing on the prospective appeal, taking into account the cited authorities.

p. 4
02

Whether the application for extension of time and leave to appeal was meritorious

Holding

The application was allowed; special circumstances existed in the Applicant's purchase of the suit land, justifying extension of time, leave to appeal and stay of execution.

Reasoning

The court applied the Salat principles that extension of time is discretionary and equitable, and the Butt v Rent Restriction Tribunal test that a stay is granted where special circumstances require. It found the Applicant's purchase of the suit land from the original registered owner constituted special circumstances favouring the application.

p. 3

Legal principles established

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  • Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court, considered on a case to case basis.
  • A preliminary objection must be based on a pure point of law and cannot involve questions of evidence.
  • A stay will be granted where special circumstances of the case so require and the appellant has an undoubted right of appeal.

Court orders

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  1. 1.The preliminary objection dated 30th July 2025 is dismissed.
  2. 2.Leave to appeal against the Ruling and Order of Honourable Kibet Sambu, Chief Magistrate delivered on 17th April 2025 in Kapsabet MCELC No E075 of 2024 is granted (prayer 2).
  3. 3.Leave granted and time extended/enlarged to enable the Applicant to lodge the appeal against the said ruling (prayer 3).
  4. 4.Stay of execution of the ruling delivered against the Applicant on 17th April 2025 pending the hearing and determination of the intended appeal (prayer 4).
  5. 5.Costs to abide the outcome of the intended appeal.
  6. 6.The Applicant's Counsel to file and serve the intended appeal within fourteen days, failing which the orders granted shall lapse automatically without any further orders.

The bench

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

majority

Wrote the judgment

On appeal from
Kapsabet Magistrates' Court (Environment and Land Case No E075 of 2024)
E075 of 2024
Jurisdiction invoked
Sections 3, 3A and 75 of the Civil Procedure Act (Cap 21) and Order 43 of the Civil Procedure Rules; Articles 48, 50(1) and 25(c) of the Constitution of Kenya 2010

Relief refused

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Prayer (a) of the Notice of Motion (rendered 'Moot')

The court only granted prayers 2, 3 and 4; prayer (a) was marked moot on the face of the application and was not granted

p. 4

Costs

Costs to abide the outcome of the intended appeal.

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….is a consideration to be made on a case to case basis………..'
p. 3Discretion to extend time
It is trite law that a preliminary objection must be based on a pure point of law and cannot involve questions of evidence
p. 3Test for preliminary objections
A fortiori, the preliminary objection is hereby dismissed while the application is hereby allowed in terms of prayers 2, 3 and 4 as stated in paragraph 1 (b) 1(c) and 1 (d) hereinabove.
p. 4Final orders
The Applicant's Counsel to file and serve the intended appeal within the next fourteen days from this date failure of which the orders granted herein shall lapse automatically without any further orders.
p. 4Final orders - condition on leave granted

Issues in the judgment

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minor

Paragraph 1 of the judgment omits the case caption/parties' names; the parties are referred to only as 'Applicant' and 'Respondent' throughout.

minor

The judgment inconsistently spells the Respondent's advocate's affidavit as 'replying afidavit' and 'relying afidavit'.

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, "Tanui v Saina (Environment and Land Miscellaneous Application E017 of 2025) [2025] KEELC 7794 (KLR)", Case Analysis (2025). Kapsabet MCELC No E075 of 2024 (intended appeal from ruling of 17th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7794/eng@2025-11-11

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