Murabula (Suing as the personal representative of the Estate of Agnes Matendechere Ubulamire and on his own behalf) v Mabwabo & 3 others (Environment and Land Miscellaneous Application E069 of 2025) [2026] KEELC 937 (KLR)
The bottom line
#A Kenyan court allowed a late land appeal because the lawyer filed in the wrong court, but refused to pause enforcement since no appeal existed yet.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is good and sufficient cause for the court to grant extension of time to the applicant to file appeal out of time.
- 2.Whether the applicant has met the threshold for grant of stay of taxation.
Key legal issues
#Whether good and sufficient cause existed to extend time for filing the appeal
Extension of time granted. The delay of six months was occasioned by counsel's mistake in filing the appeal in the High Court Family Division, a court without jurisdiction, and the applicant approached the ELC within three days of the High Court's decision striking out the appeal.
The court applied the Salat principles: length of delay, reason for delay, prejudice to respondents, and interests of justice. It found the applicant was ably represented by counsel who filed in the wrong court; the case being an ELC matter, the error was counsel's, not the applicant's deliberate act. Filing within three days of the High Court's jurisdictional ruling evidenced absence of inordinate or deliberate delay, satisfying the threshold for extension.
Whether the threshold for stay of taxation/execution was met
Rejected. Order 42 Rule 6 requires demonstration of substantial loss, security, and absence of inordinate delay, but stay pending appeal cannot issue where no appeal exists.
The court held that since leave to appeal out of time was only being granted and no appeal had yet been filed, there was no pending appeal to which a stay pending appeal could attach. The prayer was therefore premature; the applicant was at liberty to seek stay upon filing the appeal.
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the court's discretion, and an applicant must explain the delay to the court's satisfaction.
- Where an appeal is filed within time but before a court without jurisdiction, and the applicant promptly approaches the correct court after the jurisdictional decision, there is no deliberate delay and extension of time may be granted.
- Stay of execution pending appeal cannot be granted where no appeal has yet been filed.
Court orders
#- 1.Leave is granted to the applicant to file appeal against the judgment delivered in Butere SPMC ELC CASE NO. 28 OF 2023- Francis Wetukha Murabula v Dancan Kizito Mabwabo & 3 Others.
- 2.The applicant shall file and serve his appeal in 30 days of this ruling.
- 3.The prayer for stay of execution is premature and is hereby rejected.
- 4.The costs of this application are awarded to the respondents and 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, Butere (SPMC ELC)
- ELC Case No. 28 of 2023 - Francis Wetukha Murabula v Dancan Kizito Mabwabo & 3 Others
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules (extension of time to file appeal out of time); Order 42 Rule 6 of the Civil Procedure Rules (stay of execution)
Relief refused
#Stay of taxation/execution of the 1st respondent's bill of costs pending appeal
There is no appeal yet on file and the prayer for stay of execution pending appeal is premature; applicant may re-apply upon filing the appeal.
Costs
The costs of this application are awarded to the respondents and 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.
This court has both the jurisdiction and unfettered discretion to extend time. In determining whether or not to grant extension of time, the court considers the length of the delay, the reason for the delay and the interests of justice.
The case in the lower court is an ELC Case, therefore the filing of the appeal in the High court has is the applicant’s counsel’s mistake. Therefore, there was no deliberate act on the part of the applicant to delay the filing of the appeal.
In the premises the application dated 9th October 2025 partially succeeds. Therefore, leave is hereby granted to the applicant to file appeal against the judgment delivered in Butere SPMC ELC CASE NO. 28 OF 2023- Francis Wetukha Murabula v Dancan Kizito Mabwabo & 3 Others.
The prayer for stay of execution is premature and is hereby rejected.
Issues in the judgment
#Replying affidavit dated inconsistently - judgment states it was 'dated 3rd November 2026' though the ruling was delivered on 11th February 2026; likely a typographical error for 2025.
Draft Memorandum of Appeal contains grammatical/typographical error: 'has is the applicant’s counsel’s mistake'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murabula (Suing as the personal representative of the Estate of Agnes Matendechere Ubulamire and on his own behalf) v Mabwabo & 3 others (Environment and Land Miscellaneous Application E069 of 2025) [2026] KEELC 937 (KLR)", Case Analysis (2026). MC ELC 28/2023 (application dated 9th October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/937/eng@2026-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.