Omongo v Arek (Environment and Land Miscellaneous Application E001 of 2026) [2026] KEELC 4372 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to appeal two years late, ruling her lawyer's failure to tell her about the judgment shouldn't end her case.
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 has met the conditions for grant of leave to appeal out of time
- 2.whether the Applicant has satisfied the conditions for grant of a stay of execution
- 3.Who bears the costs of this application?
Key legal issues
#Whether leave to appeal out of time should be granted under Section 79G of the Civil Procedure Act
Leave granted: the delay of over two years was reasonably explained by advocate omission, institutional delay and defective proceedings; the intended appeal raises arguable issues of capacity, locus standi and privity; and no irreversible prejudice to the Respondent was demonstrated.
Applying the Mutiso and Salat principles, the court found the delay substantial but credibly explained in three phases attributable to counsel's failure to notify, delays in supplying certified proceedings, and defects in the proceedings supplied. The draft memorandum raises issues going to the root of the judgment. The Respondent's prejudice was compensable by costs. Article 159(2)(d), read with Articles 48 and 50, supported granting relief on a case-by-case basis.
Whether a stay of execution pending appeal should issue under Order 42 Rule 6
Stay granted: substantial loss established because specific performance would permanently alter the land register and destroy the substratum of the appeal; the application was made promptly upon discovery; security is provided through thrown away costs given the decree's monetary limb.
The decree required surrender of a title deed and subdivision of land parcel LR. No. UHOLO/UGUNJA/3790; once effected, the register would be permanently altered and the status quo virtually impossible to restore, rendering the appeal nugatory. All Order 42 Rule 6(2) conditions were found satisfied, with thrown away costs of Kshs. 100,000 serving as the security component given the alternative monetary limb of Kshs. 895,000 plus assessed costs.
Who bears the costs of the application
Costs of the application to abide the outcome of the appeal.
The court held that costs should be borne by the party who ultimately fails at appellate level, alongside thrown away costs payable by the applicant as a condition of leave.
Legal principles established
#- The presence of an advocate in court at delivery of judgment does not of itself establish that the advocate communicated the judgment to the client; the professional obligation to inform the client is fundamental.
- Mistakes of counsel should not be visited upon a client where the situation can be remedied by costs and the interests of justice so demand.
Court orders
#- 1.Leave granted to file and prosecute an Appeal out of time against the Judgment delivered on 31st August 2023 in Ukwala ELC No. 28 of 2019
- 2.The Applicant shall file and serve the Memorandum of Appeal and Record of Appeal within twenty-one (21) days from the date of the Ruling
- 3.The applicant shall pay thrown away costs of Kshs. 100,000 to be deposited with the respondent's counsel within 21 days of the ruling
- 4.In default of filing and payment, the leave shall automatically be vacated and the Respondent shall be at liberty to proceed with execution
- 5.Costs shall abide the outcome of the main appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- Ukwala ELC No. 28 of 2019
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
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.
1. Leave be and is hereby granted to file and prosecute an Appeal out of time against the Judgment delivered on 31st August 2023 in Ukwala ELC No. 28 of 2019
The applicant shall pay thrown away costs of Kshs. 100,000 to be deposited with the respondent's counsel within 21 days of this ruling
In default of 2 & 3 above the leave herein shall automatically be vacated and the Respondent shall be at liberty to proceed with execution.
The professional obligation to inform the client of the outcome of their case is fundamental.
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;
Article 159(2)(d) does not give courts a licence to ignore rules of procedure whenever a hard case arises.
Issues in the judgment
#Internal inconsistency in referencing the Salat decision: paragraph 29 and 50 cite 'Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR' while paragraph 36 cites 'Salat v Commission Independent Electoral and Boundaries & 16 of 2014) [2014] KESC 12 (KLR)' and paragraph 20 cites '[2014] eKLR'.
Paragraph 45 contains an apparent typographical error stating the opposite of the intended standard for an arguable appeal.
Respondent's submission on Article 159 is quoted with a typographical error ('Article 159(2)(2)' and 'proce4dural') inconsistent with the correct Article 159(2)(d) referenced elsewhere.
The applicant's averment of non-participation in the sale agreement (capacity/privity) is asserted but not yet determined at this interlocutory stage; paragraph 43 notes the court cannot verify the defects.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omongo v Arek (Environment and Land Miscellaneous Application E001 of 2026) [2026] KEELC 4372 (KLR)", Case Analysis (2026). ELCLMISC E001 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4372/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.