Kimotho v Maneno (Environment and Land Miscellaneous Application E001 of 2026) [2026] KEELC 4507 (KLR)
The bottom line
#An Eldoret court allowed a late land appeal because the owner was never told judgment had been delivered, but refused to protect him after he defied an eviction order.
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 threshold for enlargement of time to file an appeal
- 2.Whether the court should issue an order of stay of execution pending the intended appeal
- 3.Who shall bear the costs of this application
Key legal issues
#Enlargement of time to file appeal out of time under Section 79G of the Civil Procedure Act
The Applicant satisfied the threshold: the delay of one year four months was properly explained because he had no notice of the delivery of judgment, which the Respondent did not deny.
The court applied Section 79G, Section 95 and Order 50 Rule 6, guided by Salat and Thuita Mwangi factors. The judgment was delivered on 24.09.2024 without notice to the parties, contrary to Order 21 Rule 1 which requires notice of judgment. Service of the decree on 15.11.2024 came after the 30-day period had already lapsed. The claim of no notice was not denied by the Respondent, so the delay was properly explained and not inordinate, and the draft memorandum of appeal raised tangible arguable issues.
Stay of execution pending appeal under Order 42 Rule 6(2)
Stay was refused because the Applicant had re-entered the land after eviction in defiance of the trial court's orders and the alleged substantial loss was of his own making.
Although the court acknowledged the purpose of stay is to preserve the subject matter so an appeal is not rendered nugatory, the trial court had ordered the Applicant to vacate or face eviction and issued a permanent injunction. He was evicted and thereafter re-entered the land, which the court found contemptuous and unrebuted. Having put himself in harm's way, he must assume the harm of a second eviction; substantial loss could not rest on his own designs.
Costs of the application
Despite the Applicant's partial success, the Respondent was awarded costs, guided by the proviso to Order 50 Rule 6 that costs of an extension-of-time application are borne by the applicant unless the court orders otherwise.
Section 27(1) of the Civil Procedure Act embodies the principle that costs follow the event, and the Applicant partially succeeded. However, the proviso to Order 50 Rule 6 displaced that outcome, and the court declined to exercise its discretion to order otherwise, awarding the Respondent costs.
Legal principles established
#- Extension of time is a discretionary remedy available only to a deserving party who must give a plausible explanation for the delay.
- A plausible and satisfactory explanation for delay is the key to unlocking the court's discretion to enlarge time.
- Substantial loss for purposes of stay of execution cannot be loss of the applicant's own making.
Court orders
#- 1.Time be and is hereby granted to enlarge time to allow the Applicant file an Appeal out of time against the judgment delivered on 24th September, 2024 vide Eldoret Chief Magistrate Land Case No. E116 of 2021
- 2.The intended appeal to be filed within 7 days from the date hereof
- 3.The Respondent shall have the costs of this Application to be borne by the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret Chief Magistrate Land Case No. E116 of 2021
- Jurisdiction invoked
- Section 79G and Section 95 of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of execution of the decree and/or eviction against the Applicant pending the hearing and determination of the intended Appeal
The Applicant's re-entry into the suit property after eviction, in defiance of the trial court's orders, was contemptuous and he failed at the requirement of substantial loss, which cannot be of the Applicant's own making.
Costs
The Respondent shall have the costs of this Application, which shall be borne by the Applicant.
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.
Time be and is hereby granted to enlarge time to allow the Applicant file an Appeal out of time against the judgment delivered on 24th September, 2024 vide Eldoret Chief Magistrate Land Case No. E116 of 2021.
The intended appeal to be filed within 7 days from the date hereof.
The Respondent shall have the costs of this Application to be borne by the Applicant.
I find that a party who is blatantly defying the orders of the trial court is not deserving of the exercise of discretion by this court in their favour as regards the order of stay of execution.
extension of time is not a right of a party, but a discretionary remedy that is only available to a deserving party.
Issues in the judgment
#The motion is dated 15th January, 2026 in the opening but the final orders refer to a Notice of Motion dated 16th January, 2026, and the filing date is given as 16th January, 2026.
The Afidavit of Service date is stated inconsistently as 15.11.2025 in the Respondent's affidavit account but 15th November, 2024 in the court's analysis.
Salat is cited with conflicting years - (2014) eKLR in submissions and (2015) eKLR in the court's analysis.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimotho v Maneno (Environment and Land Miscellaneous Application E001 of 2026) [2026] KEELC 4507 (KLR)", Case Analysis (2026). Eldoret Chief Magistrate Land Case No. E116 of 2021 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4507/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.