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ELCDismissedMiscellaneous Application No. E013 of 2025

Naomi Aludi Osieko v Eliud Ogeso, Charles Oguta, Migori County Land Registrar & Migori County Surveyor

Environment and Land Court of Kenya
22 September 2026
4,435 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to let a woman appeal five months late because she offered no evidence explaining the delay.

What this practically means

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Executive summary

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The applicant, who lost her suit in Migori MCELC Case No. 31 of 2020 before Naomi Wairimu SPM (judgment delivered 5th December 2024), moved the Environment and Land Court at Migori by Notice of Motion dated 12th May 2025 under sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6, Order 45 Rule 6 and Order 51 of the Civil Procedure Rules, seeking leave to appeal out of time and a stay of execution pending appeal. She attributed the delay to her former advocate's failure to inform her of the judgment until 30th December 2024, lack of funds to instruct new counsel, non-availability of proceedings requested on 8th January 2025, and her advanced age and ill-health. The 1st and 2nd respondents opposed, contending the judgment was a negative order incapable of stay, that no substantial loss or sufficient cause was shown, and that the roughly five-month delay was unexplained. The court framed three issues: extension of time, stay, and costs. Applying section 79G and the Supreme Court's Salat principles, and the Muya guidance on inordinate delay, the court found the applicant had learned of the judgment before time lapsed, had not explained the gap between 8th January and 12th May 2025, and had adduced no evidence for her allegations of counsel's negligence or ill-health; absence of proceedings was no excuse since they are not prerequisites to filing an appeal. Leave to appeal out of time was declined, the stay prayer fell with it, and, in light of the possibly true but unproved claims of age and ill-health, each party was ordered to bear their own costs.

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 has satisfied the conditions for grant of leave to file an appeal out of time
  2. 2.If the answer to (a) above is in the affirmative, whether an order of stay of execution pending appeal should issue
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Whether the applicant established good and sufficient cause under section 79G for filing the appeal out of time

Holding

No - the applicant failed to prove her allegations of counsel's negligence, lack of funds and ill-health, and did not explain the delay from 8th January 2025 to 12th May 2025

Reasoning

The court applied the Salat extension-of-time principles. The applicant admitted learning of the judgment before time lapsed, yet only wrote a letter requesting proceedings on 8th January 2025 instead of filing the extension application, waiting until 12th May 2025. Allegations against her former advocate and of ill-health were unsupported by any evidence, leaving the burden undischarged.

p. 23
02

Whether stay of execution pending appeal should issue under Order 42 Rule 6

Holding

The prayer fell with the refusal of extension of time and was not granted

Reasoning

Stay pending appeal is premised on a filed or permitted appeal. Having declined leave to appeal out of time, the court held the stay prayer had no foundation and dismissed it without further analysis of substantial loss, security or promptness.

p. 24
03

Who should bear the costs of the application

Holding

Each party to bear their own costs, the court exercising discretion under section 27 in light of the possibly true but unproved allegations of the applicant's age and ill-health

Reasoning

Although costs ordinarily follow the event, the judge noted the unproved allegations that the applicant is an elderly lady who is unwell and, granting they may be true, exercised discretion to make no order as to costs.

p. 24

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, not a right of a party
  • Whether delay is inordinate is determined on a case-by-case basis, focusing on justification and reasons rather than length alone
  • A party alleging ill-health or counsel's negligence as cause for delay bears the burden of proving those allegations with evidence
  • Absence of typed proceedings and certified judgment is not sufficient cause for delay since they are not prerequisites to filing an appeal in the High Court

Court orders

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  1. 1.The applicant's prayer for leave to file an appeal out of time is declined
  2. 2.The prayer for stay of execution pending appeal falls and is not granted
  3. 3.Each party to bear their own costs of the application

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Migori (trial court)
Migori MCELC Case No. 31 of 2020
Jurisdiction invoked
Sections 79G and 3A of the Civil Procedure Act; Order 42 Rule 6, Order 45 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010

Relief refused

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Leave to appeal out of time against the judgment of 5th December 2024

The reasons for the delay were not plausible and did not constitute good and sufficient cause; the delay was inordinate and unexplained

p. 23

Stay of execution pending appeal

Having declined extension of time, the stay prayer had no foundation

p. 24

Costs

Each party to bear their own costs of the application

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.

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
p. 13Principles for extension of time
the court does not find the reasons for the delay advanced by the applicant plausible and the same do not constitute a good and sufficient reason. The delay is inordinate and the same has not been explained to the satisfaction of the court.
p. 23Good and sufficient cause under section 79G
Having declined the prayer to extend time to appeal out of time, the prayer on stay of execution pending appeal is without legs and equally falls.
p. 24Stay of execution pending appeal
I exercise my discretion to order that each party to bear their own costs of the application.
p. 24Costs - final orders
Equity does not aid the indolent.
p. 23Discretionary remedy and unexplained delay

Issues in the judgment

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minor

Conflicting dates for the trial judgment

minor

Submissions give a different delivery date than the motion

minor

Grounds of Opposition dated 2026, before submissions of July 2026 but over a year after the application

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, "Naomi Aludi Osieko v Eliud Ogeso, Charles Oguta, Migori County Land Registrar & Migori County Surveyor", Case Analysis (2026). Miscellaneous Application No. E013 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5600/eng@2026-09-22

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