Gacheru v Dibogo & another (Environment and Land Appeal E027 of 2024) [2026] KEELC 1116 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should exercise its discretion to enlarge time for filing of an appeal out of time.
- 2.Whether the application meets the requirements under Order 42 Rule 6 for grant of stay of execution.
- 3.Who bears the costs of the application.
Key legal issues
#Whether the delay of over one year in filing the intended appeal was excusable
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.
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.
Whether the Applicant satisfied the Order 42 Rule 6(2) requirements for stay of execution pending appeal
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.
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.
Legal principles established
#- 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
#- 1.An order for maintenance of status quo stopping any further construction/developments on parcel Number South Ugenya/Rangala/1245.
- 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.The appeal to be filed within 14 days of the ruling, failing which the orders shall automatically be discharged.
- 4.Costs of the application awarded to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
Costs
Costs of this Application are awarded to the Respondent.
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.
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
The court has a human face. I do not think anyone would want to wish sickness upon themselves.
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.
1. An order for maintenance of status quo hereby issues stopping any further construction/ developments on parcel Number South Ugenya/Rangala/1245.
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.
3. The appeal shall be filed within 14 days of this ruling failure to which the orders above shall automatically be discharged.
Costs of this Application are awarded to the Respondent.
Issues in the judgment
#The court allowed the application yet awarded costs of the application to the Respondent, which is internally inconsistent with the disposition.
Inconsistent dates: the Replying Affidavit is described as sworn on 4th February 2025 in one paragraph and 9th September 2024 in another.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.