Emikala v Board of Trustees Church of God in East Africa Kenya (Mwihila Mission) (Environment and Land Miscellaneous Application E031 of 2025) [2026] KEELC 1714 (KLR)
The bottom line
#The High Court in Kakamega refused to extend time to appeal because the applicant waited seven months and blamed their advocate without proof.
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 applicant deserves the orders sought
Key legal issues
#Whether the applicant was entitled to extension of time to file an appeal out of time under Section 79G of the Civil Procedure Act
The application was dismissed; the 7-month delay was inordinate and the explanation (that the advocate failed to file the appeal) was unsupported by evidence and not excusable
The court applied Section 79G, which requires an appeal from a subordinate court to be filed within 30 days, extendable on good and sufficient cause. Relying on the Salat decision, it held that the burden lies on the applicant to lay a basis for extension and explain the delay to the court's satisfaction. The ruling was delivered on 24th September 2024 but the application was filed on 26th April 2025, a 7-month delay. No evidence showed instructions to appeal had been given, and the applicant should not have taken 7 months to discover the omission given the 30-day filing window.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay to the court's satisfaction
- To obtain leave to appeal out of time, the applicant must explain the reason for delay to the satisfaction of the court
Court orders
#- 1.The Notice of Motion dated 22nd April 2025 dismissed
- 2.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Butere SPMC (Senior Principal Magistrates' Court)
- Butere SPMC ELC No. E006 of 2024
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act
Relief refused
#Extension of time / leave to file appeal out of time against the ruling of 24th September 2024 in Butere SPMC ELC No. E006 of 2024
Delay of 7 months was inordinate and the alleged failure by the advocate to file the appeal was not evidenced; the applicant himself did not follow up within the 30-day window
Stay of execution of the orders, decree and consequential orders arising from the said ruling
It fell with the dismissal of the application
Costs
Dismissed with costs 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.
In the premises I find no merit in the application dated 22nd April 2025 which I dismiss with costs to the respondent.
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.
to obtain leave to appeal out of time the applicant is obligated to explain the reason for delay to the satisfaction of the court, as the discretion to extend time ought to be exercised judiciously.
Provided that an appeal may be admitted out of time if the Appellant satisfies the court that he had good and suficient cause for not filing the appeal in time.
Issues in the judgment
#The prayer for leave to appeal out of time was expressed to be pending inter partes hearing and determination of the application, rendering it spent, yet the court analysed it on the merits
The respondent's replying affidavit is described as sworn on 11th August 2025 while the application is dated 22nd April 2025 and stated to have been filed on 26th April 2025; the judgment elsewhere refers to filing on 26th April 2025 against the motion date of 22nd April 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emikala v Board of Trustees Church of God in East Africa Kenya (Mwihila Mission) (Environment and Land Miscellaneous Application E031 of 2025) [2026] KEELC 1714 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1714/eng@2026-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.