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ELCDismissedKapsabet ELCL MISC No. E005 of 2026

Sum v Amaisa (Environment and Land Miscellaneous Application E005 of 2026) [2026] KEELC 4972 (KLR)

Environment and Land Court
28 July 2026
1,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a bid to appeal late and halt eviction because the applicant explained neither the three-month delay nor avoided an existing appeal.

What this practically means

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Executive summary

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The applicant, John Jonah Sum, the defendant in Kapsabet Chief Magistrate's Environment and Land Case No. E064 of 2022, against whom judgment of eviction and permanent injunction was delivered on 19th December 2025, moved the Environment and Land Court at Kapsabet by Notice of Motion seeking leave to appeal out of time and stay of execution of that judgment. He attributed the delay to medical treatment and financial constraint. The respondent, Ezekiel Amaisa, who had already lodged Kapsabet ELC Appeal No. E001 of 2026 against the award of mesne profits, opposed the application, contending that the alleged illness was unsupported by credible medical evidence, the delay was inordinate, and the applicant had deliberately failed to file a cross-appeal in the pending appeal. Both sides cited authority on extension of time principles, including the Salat decision and County Executive of Kisumu. The court, Ongondo J, held that the application was commenced close to three months after the judgment and that the applicant had not proved illness or financial constraint as reasons for the delay. It further noted that it had jurisdiction under section 13(7) of the Environment and Land Court Act to grant interim preservation orders, but that since the pending appeal concerned the same subject matter and parties and the applicant had not cross-appealed, he did not deserve preservation orders. The application was dismissed with costs to the respondent on 28th July 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant deserves leave to appeal out of time against the judgment of 19th December 2025
  2. 2.Whether the applicant deserves stay of execution of the said judgment
  3. 3.Whether the applicant established sufficient cause for the delay in filing the appeal

Key legal issues

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01

Extension of time to appeal

Holding

Application refused because the delay was unexplained and illness/financial constraint were not proved.

Reasoning

The application was filed close to three months after the judgment. The court applied the Nicholas Salat principles on length of and reasons for delay, and endorsed the County Executive of Kisumu requirement that the whole period of delay be satisfactorily explained. The applicant failed to prove the alleged illness and financial hardship, so the equitable discretionary remedy was not deserved.

p. 7
02

Stay of execution / preservation orders

Holding

Refused because the applicant deliberately bypassed the pending appeal rather than filing a cross-appeal.

Reasoning

The court found power to grant interim preservation orders under section 13(7) of the ELC Act and Butt v Rent Restriction Tribunal discretion. However, since Kapsabet ELC Appeal No. E001 of 2026 on the same subject matter and parties was pending and the applicant had not filed a cross-appeal, he deliberately filed the application and did not deserve preservation orders.

p. 8

Legal principles established

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  • In applications for extension of time, the whole period of delay must be declared and explained to the satisfaction of the court.

Court orders

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  1. 1.The application dated 17th March 2026 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act, 2015 (interim preservation orders)

Relief refused

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Moot prayer (a) of the application

Not considered; application dismissed in entirety

Leave to file appeal out of time

Delay of close to three months not satisfactorily explained; illness and financial constraint not proved

p. 7

Stay of execution

Applicant, aware of the pending appeal on the same subject matter and parties, deliberately filed the application and does not deserve preservation orders

p. 8

Costs

The application is dismissed with costs to the respondent.

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.

Accordingly, the application dated 17 TH March 2026 is devoid of merit. The same is hereby dismissed with costs to the respondent.
p. 9final orders - dismissal with costs
’It is trite that in application for extension of time, the whole period of delay should be declared and explained satisfactory to the court’
p. 7principles for extension of time
The applicant being conscious of the said appeal deliberately filed the instant application, does not deserve any preservation orders in the circumstances.
p. 8stay of execution denied where pending appeal exists
This is an equitable discretionary remedy to a deserving party.
p. 7nature of extension of time

Issues in the judgment

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minor

Discrepancy in the date of the application: heading says Notice of Motion dated 5th March 2026 but the ruling dismisses an application dated 17th March 2026.

minor

Jurisdictional anomaly: a single judge of the ELC purports to grant leave to appeal out of time against a PM's decision, a matter ordinarily within the High Court's appellate jurisdiction; also internally referred to as 'Nicholas Salt case' in places versus 'Nicholas Salat'.

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, "Sum v Amaisa (Environment and Land Miscellaneous Application E005 of 2026) [2026] KEELC 4972 (KLR)", Case Analysis (2026). Kapsabet ELCL MISC No. E005 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4972/eng@2026-07-28

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