Matenzawa v Kandau (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 1906 (KLR)
The bottom line
#A 104-year-old woman won permission to appeal her eviction late, after showing illness and delayed court documents caused the delay.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file an appeal
The applicant gave reasonable grounds for the delay: proceedings and judgment were supplied outside the appeal period and she fell ill and was hospitalized shortly after judgment; at her advanced age the delay was not blameworthy.
The court applied the Supreme Court's factors in Mwambora v Spire Properties: extension of time is discretionary and requires a reasonable, satisfactorily explained delay and absence of prejudice. The record contained a letter of 29/8/2024 requesting proceedings, treatment notes showing illness after judgment, and an ID showing she was born in 1920. On balance the court found her credible and the delay excusable.
Stay of execution pending appeal
Stay was granted under Order 42 Rule 6 because the application was brought without unreasonable delay and substantial loss (possible eviction and exhumation of bodies) was shown, with security for costs to be fixed on the next date.
Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay, and security. The court balanced the appellant's right of appeal against the decree holder's fruits of judgment, as required by the authorities cited, and ordered an interim stay without security until security is determined inter partes.
Legal principles established
#- Extension of time is an equitable remedy, not a right, available to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay and showing absence of prejudice.
- Whether delay is unreasonable depends on the circumstances of each case.
Court orders
#- 1.Leave granted to the applicant to file an appeal out of time (prayer 2)
- 2.Stay of execution of the judgment delivered on 27/8/2024 and the decree pending hearing and determination of the appeal (prayer 3)
- 3.The draft Memorandum of Appeal filed herewith deemed as an appeal duly filed (prayer 4)
- 4.Costs of the application to be in the cause (prayer 5)
- 5.Security for costs for the stay to be fixed on the next date after hearing both sides; interim stay to apply without payment of security until then
- On appeal from
- Magistrate's Court, Mwingi
- CM ELC No. 17 of 2018
- Jurisdiction invoked
- Order 42 Rules 1, 2 and 6, Order 50, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 3, 3A, 1A and 1B of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matenzawa v Kandau (Environment and Land Miscellaneous Case E002 of 2025) [2026] KEELC 1906 (KLR)", Case Analysis (2026). Not stated in the ruling (intended appeal from Mwingi CM ELC No. 17 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1906/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.