Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 35 of 2019

Daniel Kimase Kipsoi v Protus Kiplagat Cheruiyo & 3 Others

Environment and Land Court
28 September 2026
2,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

The Eldoret Environment and Land Court dismissed the applicants' bid to appeal late and stop their eviction because their Notice of Appeal was never properly lodged with the Deputy Registrar.

What this practically means

#

Executive summary

#
The four defendants (Applicants) in ELC Case No. 35 of 2019 at Eldoret filed a Notice of Motion dated 12.01.2026 seeking leave for new advocates to come on record, extension of time to file an appeal out of time against the court's judgment of 11.11.2025 (which found their occupation of the suit property unlawful and ordered eviction), deeming of their Notice of Appeal as properly filed, and stay of execution pending appeal. They blamed their former advocates, T. Cheruiyot & Company Advocates, for failing to communicate the judgment and the pending evictions, which they learnt of only in January 2026. The plaintiff (Respondent) opposed, asserting the Applicants' counsel was present when judgment was delivered, that no satisfactory explanation for the delay was given, and that the application was a delaying tactic to deny him the fruits of his judgment. Justice Emmanuel M. Washe framed four issues. Applying Section 75(1) & (2) and Section 76 of the Appellate Jurisdiction Act, Cap 9, and the four considerations in Paul Musili Wambua v Attorney General (2015) eKLR, the court found the Notice of Appeal dated 12.01.2026 had never been lodged with and acknowledged by the Deputy Registrar, so no properly lodged Notice of Appeal existed upon which the Court could exercise its discretion to extend time; the prayer was premature. Consequently, there being no lawful Notice of Appeal evidencing an intention to appeal, the stay of execution could not be considered. The application was found unmerited and dismissed, with costs to the Respondent, costs following the event.

Questions the Court framed

#

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

  1. 1.Whether the Applicants demonstrated sufficient reason why time to file the Notice of Appeal should be extended and it deemed properly filed
  2. 2.Whether the Applicants satisfied the conditions required to grant an order of stay of execution pending appeal against the judgment pronounced on 11.11.2025
  3. 3.Whether the present application is merited
  4. 4.Who bears the costs of the present application

Key legal issues

#
01

Extension of time to file a Notice of Appeal out of time

Holding

The prayer was premature and refused because the Notice of Appeal dated 12.01.2026 was never lodged with and acknowledged by the Deputy Registrar, leaving the Court with no Notice of Appeal upon which to exercise its discretion

Reasoning

The court applied Section 75(1) & (2) of the Appellate Jurisdiction Act requiring lodgement of a Notice in writing within 14 days, and Section 76 deeming a Notice duly lodged upon the Deputy Registrar's acknowledgement. The attached Notice of Appeal had not been received by the Deputy Registrar, so no properly lodged Notice of Appeal existed. Extension of time and deeming were therefore premature, and discussing the Wambua factors (length and reason of delay, chances of success, prejudice) would be academic.

p. 10
02

Stay of execution pending appeal

Holding

Refused because, absent a properly lodged Notice of Appeal, there was no demonstrated legal intention to appeal, a prerequisite for considering stay pending appeal

Reasoning

The stay prayer was contingent on extension of time being granted and the Notice of Appeal being deemed properly filed. Since the Notice of Appeal had never been lodged before the Deputy Registrar, the Court had nothing in its file demonstrating a legal intention to appeal. Without a lawful Notice of Appeal evidencing an intention to appeal, the Court could not entertain a stay of its own judgment.

p. 11
03

Costs of the application

Holding

Costs awarded to the Respondent, costs following the event

Reasoning

The court restated the settled principle that costs follow the event. Having found the application unmerited, the Applicants were condemned to pay the Respondent's costs of the application.

p. 12

Legal principles established

#
  • A Notice of Appeal is deemed duly lodged only upon the Deputy Registrar acknowledging its receipt and inserting the date of receipt; without such acknowledgement there is no Notice of Appeal upon which a court can exercise jurisdiction to extend time
  • A court cannot consider stay of execution pending appeal where no lawful Notice of Appeal has been lodged to demonstrate a legal intention to appeal
  • Costs follow the event

Court orders

#
  1. 1.The Notice of Motion dated 12.01.2026 is not merited and is forthwith dismissed
  2. 2.The Applicants are condemned to pay costs of the application to the Respondent

The bench

#

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

Wrote the judgment

Jurisdiction invoked
Inherent discretion of the Environment and Land Court over its own proceedings; extension of time sought under Section 75(1) & (2) of the Appellate Jurisdiction Act, Cap 9

Relief refused

#

Extension of time to file appeal out of time and deeming the Notice of Appeal properly filed and served

The Notice of Appeal was never lodged with and acknowledged by the Deputy Registrar, so there is no Notice of Appeal before the Court upon which to exercise discretion; the prayer is premature

p. 10

Stay of execution pending appeal

In the absence of a properly lodged Notice of Appeal demonstrating a legal intention to appeal, the Court cannot consider a stay of execution

p. 12

Leave for the firm of J.K Kaptich & Associates to come on record

Not opposed by the Respondent, but the application as a whole was dismissed with the dismissal of the Notice of Motion

p. 12

Costs

The Applicants are condemned to pay costs of the application to the Respondent (costs following the event)

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.

THE NOTICE OF MOTION DATED 12.01.2026 IS NOT MERITED AND THEREFORE FORTHWITH DISMISSED.
p. 12Final orders - dismissal of the application
THE APPLICANTS HEREIN ARE CONDEMNED TO PAY COSTS OF THE APPLICATION ON THE RESPONDENT HEREIN.
p. 12Final orders - costs
In the absence of a duly acknowledged Notice of Appeal as envisaged under Section 76 of the Appellant Jurisdiction Act, Cap 9, then the Applicants herein have no Notice of Appeal which is before the Court upon which the Court can exercise its jurisdiction to extend time and/or deem to be properly filed before the Court.
p. 10Requirement of a duly lodged and acknowledged Notice of Appeal
In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.
p. 9Considerations for extension of time (Paul Musili Wambua)

Issues in the judgment

#
minor

Judgment date typo: applicants informed of judgment 'pronounced on the 11.11.2026' though the judgment date throughout is 11.11.2025

material

Motion seeks deeming of a Notice of Appeal dated 04.01.2026, but the judgment repeatedly refers to a Notice of Appeal dated 12.01.2026

minor

Statute misnamed 'Appellant Jurisdiction Act' in places instead of 'Appellate Jurisdiction Act'

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Daniel Kimase Kipsoi v Protus Kiplagat Cheruiyo & 3 Others", Case Analysis (2026). ELC Case No. 35 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5886/eng@2026-09-28

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