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ELCPartially AllowedELCC NO. 228 OF 2017

Omolo (Suing as the legal representative of the Estate of Charles Omolo Onyango) v tagot & 3 others (Environment and Land Case 228 of 2017) [2026] KEELC 3526 (KLR)

Environment and Land Court
8 June 2026
4,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court let a landowner appeal late after settlement talks collapsed, stopped his eviction, and ruled you cannot restart talks then renege and execute.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on an application by the Defendant (the applicant) seeking reinstatement of, alternatively leave to file, a Notice of Appeal out of time, together with stay of execution of the judgment and decree of 22nd May 2025, which had cancelled his titles to land parcels Kamagambo/Kanyajuok/480 and 476 and ordered his eviction. The applicant deponed that after filing a Notice of Appeal in time on 23rd May 2025, the Respondent induced him to withdraw it through promised settlement negotiations, during which he paid KShs 500,000/= as part of the damages; the Respondent then abandoned the talks and sought to execute. The Respondent opposed, contending the court lacked jurisdiction to extend time for an appeal from itself, that no negotiations were proved, and that the payment was a precondition to the earlier stay orders. The court first held it had jurisdiction, reading the reference to the High Court in Section 7 of the Appellate Jurisdiction Act to include the ELC for matters within its jurisdiction. Applying Sections 107, 109 and 112 of the Evidence Act, the court found that the unexplained receipt of KShs 500,000/= and the Respondent's counsel's invitation to talks proved that negotiations had occurred, making the delay justifiable and the withdrawal procured by misrepresentation, conduct it branded unconscionable. The court declined to reinstate the withdrawn Notice of Appeal but granted leave to file a fresh one within the prescribed period, granted stay of execution pending appeal subject to the applicant depositing KShs 50,000/= in court as security within thirty days, and awarded costs of the application to 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 the court has jurisdiction to entertain this application
  2. 2.whether the applicant's application for leave to extend time to appeal out of time is merited
  3. 3.whether the prayer for stay of execution pending appeal is merited
  4. 4.who to bear the costs of the application

Key legal issues

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01

Whether the ELC has jurisdiction to entertain an application to extend time to appeal from its own judgment

Holding

The court held that it has jurisdiction, reading the reference to the High Court in Section 7 of the Appellate Jurisdiction Act to include the Environment and Land Court for matters within its jurisdiction

Reasoning

The court referred to Section 7 of the Appellate Jurisdiction Act which empowers the High Court to extend time for giving notice of intention to appeal. It adopted a plain reading that the reference to the High Court should be read as including the Environment and Land Court where the matter falls within that court's jurisdiction, and so the application was properly before it.

p. 9
02

Whether the delay in bringing the application was excusable

Holding

The delay was justifiable because the applicant had filed his Notice of Appeal in time and withdrew it only because of negotiations initiated by the Respondent

Reasoning

The court found that the Notice of Appeal was filed within the 30-day period under Section 79 of the Civil Procedure Act. The initial application was brought only three days after withdrawal, though amended months later. Evidence of a part-payment of KShs 500,000/= and the Respondent's counsel's conduct in inviting negotiations on 18th June 2025 persuaded the court that negotiations existed, justifying the delay.

p. 17
03

Whether the burden of proving the negotiations lay with the applicant

Holding

The applicant bore the burden of proving the negotiations, but once the Respondent asserted the payment was made in good faith for extension of stay, the burden shifted to the Respondent, whose counsel received the money and did not swear an affidavit

Reasoning

Applying Sections 107, 109 and 112 of the Evidence Act, the court held the applicant had to prove the negotiations. However, the Respondent's claim that the KShs 500,000/= was a precondition to extension of stay orders was a fact especially within his knowledge, and his counsel who received the cheque did not depose to the contrary. The court's unanswered questions led it to find in the applicant's favour.

p. 13
04

Whether stay of execution pending appeal should be granted

Holding

Stay was granted: substantial loss would result since execution against the applicant's family home would render the intended appeal nugatory and not compensable by damages, there was no unreasonable delay, and security was fixed

Reasoning

Applying Order 42 rule 6(2), the court found the suit property was the applicant's family home worth about KShs 24,500,000/=, execution might render the appeal nugatory and damages would not compensate. Delay had been addressed, and the KShs 500,000/= already paid was treated as part performance, with an additional KShs 50,000/= ordered as security for the due performance of the decree.

p. 16

Legal principles established

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  • Where there is no appeal in place and a party has withdrawn a Notice of Appeal in contemplation of negotiations, the proper remedy is leave to file a fresh Notice of Appeal rather than reinstatement of the withdrawn notice
  • A party who accepts a part-payment of a decree which the court did not order, and who denies knowledge of the negotiations surrounding it, bears the burden of proving the purpose for which the payment was made
  • Inducing a party to withdraw a notice of appeal through negotiations and then reneging to pursue execution is unconscionable and amounts to misrepresentation

Court orders

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  1. 1.The prayer to file a fresh Notice of Appeal granted; the fresh Notice of Appeal to be lodged and served within the prescribed period
  2. 2.Stay of execution of the judgment and decree granted pending the intended appeal
  3. 3.The applicant to deposit KShs 50,000/= in court within thirty (30) days as security for the due performance of the decree, in default the stay to lapse
  4. 4.Costs of the application awarded to the applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9; Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act

Relief refused

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Reinstatement of the Notice of Appeal dated 23rd May 2025 and deemed as duly filed and served

The court found that a withdrawn notice of appeal cannot be reinstated and instead granted leave to file a fresh notice

p. 17

Costs

Costs of the application awarded to 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.

In my view, the one Notice of Appeal withdrawn cannot be reinstated. I therefore grant the prayer to file a fresh Notice of Appeal which is to be lodged and served within the prescribed period. I also grant a stay of execution in terms of the conditions stated in paragraph 37 above.
p. 17Final orders - leave to file fresh Notice of Appeal and stay of execution
the applicant is to deposit in court the said KShs 50,000/= within the next thirty (30) days as security for the due performance of the decree, in default the stay to lapse.
p. 16Security for due performance of the decree
Such conduct is unconscionable and amounts to undercutting one party and it is a misrepresentation on the part of the Respondent.
p. 17Reneging on post-judgment negotiations after inducing withdrawal of an appeal
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 8Primacy of jurisdiction (citing Owners of the Motor Vessel 'Lillian S')
I will exercise this discretion and award costs to the applicant.
p. 18Costs of the application

Issues in the judgment

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minor

The delivery date appears as 08th day of June 2026, which is inconsistent with the record showing the application filed on 17th November 2025 and referred to as decided shortly after; the year 2026 may be a typographical error

minor

The deponent of the supporting affidavit is given as both 'Raymond Ogwe Advocate' and 'Rayment Ogwe, counsel' within the judgment

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, "Omolo (Suing as the legal representative of the Estate of Charles Omolo Onyango) v tagot & 3 others (Environment and Land Case 228 of 2017) [2026] KEELC 3526 (KLR)", Case Analysis (2026). ELCC NO. 228 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3526/eng@2026-06-08

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