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ELCPartially Allowednull - not stated in the judgment

Gacheru v Dibogo & another (Environment and Land Appeal E027 of 2024) [2026] KEELC 1116 (KLR)

High Court of Kenya
26 February 2026
2,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Siaya High Court gave a delayed litigant 14 days to file an appeal and stopped construction on the disputed land, but she still pays the legal costs.

What this practically means

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Executive summary

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The Applicant, whose suit in MCELC 4 of 2019 was dismissed with costs on 29th May 2023 by Hon. L. N. Sarapai (PM), applied by notice of motion dated 7th August 2024 for stay of execution and extension of time to appeal. She attributed the delay of over a year to illness (evidenced by a Rangala Mission Hospital letter) and to the lower court's failure to supply certified copies of the judgment, decree and typed proceedings. The Respondent opposed, contending the delay was inordinate, the application an afterthought and an abuse of process, and that he had begun construction on the suit property, South Ugenya/Rangala/1245, so any stay would prejudice him. The court framed three issues: enlargement of time, the Order 42 Rule 6(2) stay requirements, and costs. Relying on the Supreme Court's Salat factors and Section 79G of the Civil Procedure Act, the court found the Applicant had afforded an excusable explanation for the delay, holding that illness is not self-inflicted and the court has a human face. On substantial loss, it applied James Wangalwa, noting that execution alone is not substantial loss, but found that the Respondent's ongoing development of the suit property needed to be stopped to maintain the status quo and preserve the appeal. The court allowed the application: it ordered maintenance of status quo halting further construction on the parcel, granted leave to file the appeal out of time within 14 days failing which the orders would stand discharged, and - inconsistently - awarded costs of the application to the Respondent.

Questions the Court framed

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

  1. 1.Whether the court should exercise its discretion to enlarge time for filing of an appeal out of time.
  2. 2.Whether the application meets the requirements under Order 42 Rule 6 for grant of stay of execution.
  3. 3.Who bears the costs of the application.

Key legal issues

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01

Whether the delay of over one year in filing the intended appeal was excusable

Holding

The court found the Applicant's illness and non-supply of certified documents to constitute sufficient cause under Section 79G of the Civil Procedure Act.

Reasoning

The court applied the Supreme Court's Salat factors on extension of time. The Applicant filed a letter from Rangala Mission Hospital dated 29th July 2024 evidencing health challenges during the relevant period, and attributed the delay to non-supply of typed proceedings. The court held that no one chooses to fall ill, that the court has a human face, and that the Applicant had afforded an excusable explanation for the delay despite the Respondent's argument that the delay was inordinate and the application an afterthought.

p. 3
02

Whether the Applicant satisfied the Order 42 Rule 6(2) requirements for stay of execution pending appeal

Holding

The court found substantial loss lay in the Respondent's ongoing construction on the suit property, which needed to be stopped to preserve the status quo and avoid rendering the intended appeal nugatory.

Reasoning

The court restated the Order 42 Rule 6(2) requirements: substantial loss, application without unreasonable delay, and security. Citing James Wangalwa & Another v Agnes Naliaka Cheseto, it noted execution alone is not substantial loss, but found here that the Respondent's ongoing development of South Ugenya/Rangala/1245 would alter the position on the ground. It directed maintenance of status quo to preserve the suit property so the appeal, if successful, would not be rendered nugatory.

p. 4

Legal principles established

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  • Extension of time is an equitable, discretionary remedy available only to a deserving party who explains the delay and shows no prejudice to the respondent.
  • The mere fact that execution has been put in motion does not amount to substantial loss under Order 42 Rule 6.
  • In balancing the right to enjoy the fruits of a judgment against the right of appeal, the court will choose the lesser risk and accord the intended appeal an opportunity to be ventilated.

Court orders

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  1. 1.An order for maintenance of status quo stopping any further construction/developments on parcel Number South Ugenya/Rangala/1245.
  2. 2.Leave granted to the Applicant to file an appeal against the judgment of Hon. L. N. Sarapai (PM) in MCELC 4 of 2019 delivered on 29th May, 2023.
  3. 3.The appeal to be filed within 14 days of the ruling, failing which the orders shall automatically be discharged.
  4. 4.Costs of the application awarded to the Respondent.

The bench

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

majority

Wrote the judgment

On appeal from
Magistrates' Court (trial court, Siaya)
MCELC 4 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal); Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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Costs of the application to the Applicant notwithstanding that the application was allowed

The court, despite allowing the application, awarded costs of the application to the Respondent.

p. 5

Costs

Costs of this Application are awarded to the Respondent.

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
p. 3extension of time - discretion
The court has a human face. I do not think anyone would want to wish sickness upon themselves.
p. 3excusable delay - illness
It is a delicate balance and I must choose the lesser risk should I be found to be wrong. I will accord the opportunity for the intended appeal to be ventilated as opposed to burying it completely.
p. 3balancing right of appeal and fruits of judgment
1. An order for maintenance of status quo hereby issues stopping any further construction/ developments on parcel Number South Ugenya/Rangala/1245.
p. 4final orders - status quo
2. That leave be and is hereby granted allowing the Applicant file an appeal against the judgement of Hon. L. N. Sarapai (PM) in MCELC 4 of 2019 delivered on 29th May, 2023.
p. 5final orders - leave to appeal out of time
3. The appeal shall be filed within 14 days of this ruling failure to which the orders above shall automatically be discharged.
p. 5final orders - conditional timeline
Costs of this Application are awarded to the Respondent.
p. 5costs

Issues in the judgment

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material

The court allowed the application yet awarded costs of the application to the Respondent, which is internally inconsistent with the disposition.

minor

Inconsistent dates: the Replying Affidavit is described as sworn on 4th February 2025 in one paragraph and 9th September 2024 in another.

minor

Dated line contains a typographical error ('26TH H DAY OF FEBRUARY 2026') and submissions are dated October 2025 though the matter was decided in February 2026; the Applicant's supporting affidavit is described as sworn on 1st August 2024 while the application is dated 7th August 2024.

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, "Gacheru v Dibogo & another (Environment and Land Appeal E027 of 2024) [2026] KEELC 1116 (KLR)", Case Analysis (2026). null - not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1116/eng@2026-02-26

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