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ELCDismissedMiscellaneous Application (Notice of Motion dated 14th January 2025), arising from Migori ELC Case No. 26A of 2024

Nyamwaya v Obara & 5 others (Environment and Land Miscellaneous Application E001 of 2025) [2026] KEELC 101 (KLR)

Environment and Land Court
16 January 2026
INDr. Iur Nyagaka
3,032 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused a Kenyan landowner permission to appeal eight months late, because he could not explain the delay.

What this practically means

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Executive summary

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The Applicant, Benedict Owour Nyamwaya, moved the court by Notice of Motion dated 14th January 2025 seeking leave to appeal out of time against the judgment of Hon. Wairimu SPM delivered on 9th April 2024 in Migori ELC Case No. 26A of 2024, in which judgment was entered in favour of the Respondents. He attributed the delay to third-party applications filed by his brother and others seeking to be joined in the suit after judgment, which he said he had to await, those applications being dismissed by a ruling dated 5th December 2024. The Respondents opposed, contending that the joinder applications were by strangers to the suit, filed long after the 30-day statutory period had lapsed, that no stay had been issued, and that the application was an afterthought; they had already executed the decree, resurveyed the land, obtained a new title deed and even buried a family member on the disputed parcel. Both parties filed written submissions. The court framed two issues: whether leave to appeal out of time should be granted, and costs. Applying section 79G of the Civil Procedure Act and the principles in the Salat decision of the Supreme Court, the court held that the burden lay on the Applicant to give a full, honest and acceptable explanation for the delay of over eight months (240 days). It found the joinder applications gave no sufficient cause, as they were filed after the statutory period had expired and did not stay further proceedings, and that the Respondents would be prejudiced, there being a need for finality in litigation. Prayer 1 was declined and the court found no basis to analyse the merits of the intended appeal. Applying section 27, the Applicant was ordered to bear the costs of the application.

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 should be granted leave to file an appeal out of time
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the Applicant was entitled to leave to file an appeal out of time

Holding

Leave was refused because the Applicant failed to show good and sufficient cause for the delay; the joinder applications by third parties neither stayed proceedings nor explained the delay beyond the 30-day period.

Reasoning

The judgment was delivered on 9th April 2024 and the application was filed on 14th January 2025, exceeding the 30-day limit under section 79G by over eight months. The applications by the Applicant's brother and other strangers to the suit were filed long after the statutory period had lapsed, no stay of proceedings had been issued, and the Applicant never demonstrated the nexus between those applications and his failure to appeal. Respondents had also executed the decree and obtained a new title, and would be prejudiced.

p. 5
02

Who should bear the costs of the application

Holding

The Applicant, having failed, was ordered to bear the costs.

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event, granted at the court's discretion. The Respondents succeeded in opposing the application, so the Applicant was ordered to bear the costs of the application.

p. 6

Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party, and the applicant must provide a full, honest and acceptable explanation for the delay.
  • The burden of proving good and sufficient cause for the delay lies on the party seeking extension of time.
  • Equity does not aid the indolent; a party must demonstrate diligence before seeking clemency from the court.
  • Extension of time must consider the prejudice to the respondent and the need for finality of litigation.

Court orders

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  1. 1.Prayer 1 of the application (leave to file an appeal out of time) declined
  2. 2.The Applicant shall bear the costs of the application

The bench

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

IN
majority

Wrote the judgment

On appeal from
Senior Principal/Chief Magistrates? Court (Hon. Wairimu SPM), Migori
Migori ELC Case No. 26A of 2024
Jurisdiction invoked
Sections 79G, 75, 1A, 1B of the Civil Procedure Act and Orders 42, 43 Rule 1, 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Leave to file an appeal out of time against the judgment and decision of Hon. Wairimu SPM delivered on 9th April 2024

The delay of over eight months was not satisfactorily explained; the third-party joinder applications relied on gave no cause for the delay past the 30-day statutory period, and the Respondents would be prejudiced having executed the decree and obtained a new title deed.

p. 6

Costs of the application sought by the Applicant

Costs follow the event under section 27 of the Civil Procedure Act; the Respondents succeeded.

p. 6

Costs

The Applicant shall bear the costs of the application.

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.

Accordingly, prayer 1 of the application is hereby declined. Having so found, I am of the humble view that there is no basis for me to analyze the chances of success of the intended appeal.
p. 6Final orders - refusal of extension of time
In the instant application, the Respondents have succeeded. Accordingly, the Applicant shall bear the costs of the application.
p. 6Final orders - costs
the Court is not convinced that the Applicant was prevented from filing an appeal within time by dint of the applications states to have barred him from filing the appeal.
p. 5Failure to explain delay
Equity does not aid the indolent. A party must demonstrate that they are not just sitting and doing nothing, then approach the court for clemency. Justice cuts across both sides of a case.
p. 6Diligence required of applicants for extension of time
Extension of time to allow a party to appeal out of time should never be about the Applicant alone; it should also consider the prejudice to be sufiered by the Respondents.
p. 6Prejudice to the respondent and finality of litigation

Issues in the judgment

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minor

The judgment inconsistently styles the Applicant, referring to him as 'Applicant' but also as 'Appellant' in the submissions sections.

minor

Date inconsistency in the Respondents' submissions, described as dated 25th November 2025 when the application was decided in January 2026.

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, "Nyamwaya v Obara & 5 others (Environment and Land Miscellaneous Application E001 of 2025) [2026] KEELC 101 (KLR)", Case Analysis (2026). Miscellaneous Application (Notice of Motion dated 14th January 2025), arising from Migori ELC Case No. 26A of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/101/eng@2026-01-16

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