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ELCPartially AllowedMC ELC 28/2023 (application dated 9th October 2025)

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)

Environment and Land Court
11 February 2026
1,360 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant moved the Environment and Land Court at Kakamega by Notice of Motion dated 9th October 2025 seeking leave to file an appeal out of time against the judgment of 18th March 2025 in Butere SPMC ELC Case No. 28 of 2023 (Francis Wetukha Murabula v Dancan Kizito Mabwabo & 3 Others), which dismissed his suit for lack of capacity, and a stay of taxation of the 1st respondent's bill of costs pending appeal. The applicant explained that he had filed his appeal within the statutory 30 days but in the High Court Family Division (Kakamega HCFA E013/2025), which on 3rd October 2025 held it lacked jurisdiction, and that he approached the ELC within three days of that decision. The respondents opposed, citing inordinate delay, bad faith, lack of demonstrated substantial loss, and the absence of a reference against taxation. Applying section 79G of the Civil Procedure Act, Order 50 Rule 6 and the Salat principles, the court held that the six-month delay was attributable to counsel's mistake in filing before a court without jurisdiction, not to any deliberate act by the applicant, and granted leave to appeal out of time, with the appeal to be filed and served within 30 days. However, the prayer for stay of taxation/execution was rejected as premature since no appeal was yet on file, with liberty to re-apply upon filing the appeal. Costs of the application were awarded to the respondents, to be borne by the applicant.

Questions the Court framed

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

  1. 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. 2.Whether the applicant has met the threshold for grant of stay of taxation.

Key legal issues

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01

Whether good and sufficient cause existed to extend time for filing the appeal

Holding

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.

Reasoning

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.

p. 3
02

Whether the threshold for stay of taxation/execution was met

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The applicant shall file and serve his appeal in 30 days of this ruling.
  3. 3.The prayer for stay of execution is premature and is hereby rejected.
  4. 4.The costs of this application are awarded to the respondents and shall be borne by the applicant.

The bench

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

majority

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

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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.

p. 3

Costs

The costs of this application are awarded to the respondents and shall be borne by the applicant.

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.

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.
p. 3Jurisdiction and discretion to extend time
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.
p. 3Counsel's mistake as explanation for delay
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.
p. 3Final orders - leave granted
The prayer for stay of execution is premature and is hereby rejected.
p. 3Final orders - stay refused

Issues in the judgment

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minor

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.

minor

Draft Memorandum of Appeal contains grammatical/typographical error: 'has is the applicant’s counsel’s mistake'.

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, "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.