EK ((Suing on Behalf of and as the Next Friend to KKM & JMM) v BMG & another
The bottom line
#The Environment and Land Court in Meru struck out a late land appeal, confirming that Kenyan courts require permission before filing an out-of-time appeal.
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 application meets the criteria for enlarging time for lodging an appeal in this court
- 2.Whether the application meets the criteria upon which this court exercises jurisdiction to grant an order of stay of execution
Key legal issues
#Whether the delay in lodging the appeal was satisfactorily explained
The delay was not explained; no proof of a request for certified proceedings and no justification for inaction after the High Court struck out the earlier application.
The 30-day limitation period lapsed on 2/4/2026. The applicant attributed the delay to late certified proceedings and to an earlier High Court filing (Meru HCCA/E047/2026) struck out for lack of jurisdiction. The court found the High Court application was itself filed 16 days late, was struck out on 27/4/2026, and no explanation was tendered for the 15 days of inaction that followed before filing this appeal.
Whether an appeal filed out of time without prior leave can be validated by a subsequent extension application
No; such a filing is a nullity and the court declined to deem the memorandum of appeal as properly filed.
Relying on the Supreme Court's decision in Nairobi Bottlers Limited v Ndung'u, the court held that filing an appeal out of time without leave and then seeking extension is presumptive and inappropriate; the correct sequence is to obtain an enlargement order before lodging the appeal. The appellant lodged the ELC appeal without first obtaining an order enlarging time.
Whether the application brought by EK on behalf of KKM (an adult aged 20) without his authorization was competent
The applicant did not controvert that KKM is an adult who had not authorized the appeal; this weighed against exercise of discretion in her favour.
The respondent argued a violation of Order 32 rule 12 of the Civil Procedure Rules for failing to seek the consent of KKM, now an adult. The applicant did not rebut the assertion that KKM had not authorized the appeal, and did not demonstrate the basis upon which leave to appeal on behalf of an adult should be granted.
Whether a stay of the vacation of inhibition orders could be granted
Refused; with enlargement of time refused there was no pending appeal to anchor the stay order.
The stay relief was consequential on the extension of time. Once the plea for enlargement of time was rejected as unmerited, no appeal was pending before the court, and the jurisdiction to grant a stay of execution (or of the vacation of inhibition orders) could not be invoked.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the court's satisfaction.
- An appeal filed out of time without leave is a nullity; enlargement of time must be obtained before filing the appeal, not after.
- Even a delay of one day must be satisfactorily explained before the court exercises its discretion to enlarge time.
Court orders
#- 1.The application dated 12/5/2026 is rejected and dismissed for lack of merit
- 2.The appeal is struck out in terms of the preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Meru
- Meru CMCC Case No. 62 of 2023
- Jurisdiction invoked
- Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act (discretion to enlarge time for appeals to the ELC)
Relief refused
#Enlargement/extension of time for filing and serving the memorandum of appeal
Delay not satisfactorily explained; appeal filed out of time without leave; applicant purporting to appeal on behalf of an adult child without authority
Deeming the draft memorandum of appeal as filed and served within time
Filing an appeal out of time without leave renders the document a nullity; the court declined to deem it properly filed
Stay of the vacation of inhibition orders issued on 14/7/2023
No pending appeal upon which to anchor the stay order once enlargement of time was refused
Costs
No costs order made in the final orders; the motion had sought that costs abide the outcome of the main appeal.
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 result is that the application dated 12/5/2026 is rejected and dismissed for lack of merit. Secondly, this appeal is hereby struck out in terms of the preliminary objection.
In the absence of a reasonable explanation for the delay, the court has no proper basis upon which to exercise jurisdiction to enlarge time.
A delay of even one day ought to be explained satisfactorily.
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.
The plea for enlargement of time having been found to be unmerited, it follows that there is no pending appeal upon which to anchor the stay order.
Issues in the judgment
#Conflicting dates for the same motion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EK ((Suing on Behalf of and as the Next Friend to KKM & JMM) v BMG & another", Case Analysis (2026). Environment and Land Appeal E049 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5992/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.