Nyongesa v Gedi

boundaries, or interfering with the Applicants quiet possession of land parcels Kolongolo/Kolongolo/Block 4B/19 and Kolongolo/Kolongolo/Block 4B/18 pending the hearing and determination of the intended appeal. c. That an order for stay of execution be issued staying the signing, issuance, or execution of any Warrant of Arrest in execution of decree against the applicant for the taxed costs of Kshs 164,725/- pending the hearing and determination of the intended appeal. d. That costs of the application to abide the outcome of the intended appeal. 2. The application is supported by the grounds on the face of it and the averments in the supporting adavit. 3. Before delving further into the merits or otherwise of the application, I must address two issues. Firstly, the applicant has invoked the provisions of the Civil Procedure Act and the rules thereunder. It is incumbent upon this Court to remind the parties that it is a creature of the Appellate Jurisdiction Act. The procedure is governed only by that statute and the rules made thereunder, currently the Court of Appeal Rules, 2022. For that reason, the provisions of the Civil Procedure Act and its rules do not apply to this Court. 4. Secondly, under prayers (3) and (4) of the application, the applicant has sought stay of execution of the judgement and decree of the Environment and Land Court at Kitale, and stay of execution or issuance of any warrant of arrest in execution of the decree. Under the Court of Appeal Rules, 2022, such an application can only be heard by a three-judge bench. I will therefore neither consider the facts supporting that issue nor determine it altogether. 5. According to the applicant, the High Court delivered a judgment on 15th October 2025 in ELC Appeal No. E011 of 2023 and he intended to lodge an appeal within the statutory timelines but he was struck with severe and incapacitating illness that rendered him unable to instruct his advocates. He urged that he has an arguable appeal and prays the court grant the orders sought. 6. The application is opposed by the respondent who led a replying adavit dated 29th August 2026. He urged that the application lacks merit and is an afterthought. That the applicants’ medical condition is a fabrication and the reasons given for failing to le the notice of appeal are not valid. The deponent averred that the applicant appeared before the Deputy Registrar on 4th April 2026 from a Notice to Show Cause and was in very good health, annexing and marking as JJG-1 a copy of the notice. He was thereafter given sixty (60) days to vacate the parcel of land and failed to do so. He maintained that the reasons given by the applicant were not valid and urged the court to dismiss the same. 7. The applicant led a supplementary adavit in response to the replying adavit dated 17th August 2026, urging that at the time of compiling and ling the supporting adavit, his medical discharge summary was inadvertently omitted from an administrative oversight during document assembly. He annexed the same as Exhibit RNM1 and urged that it clearly demonstrates that his health was profoundly compromised, and rendered him physically and mentally incapacitated from attending to his legal aairs. 8. The application was canvassed by way of written submissions. The applicant led written submissions dated 28th August 2026. He prayed that the application be allowed. 9. Under Rule 4 of this Court’s Rules, the Court may extend time for the doing of an act authorized under the Rules. The constituent elements for succeeding in an application of this nature have been https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1711/eng@2026-09-25 2

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well settled in our jurisdiction. This Court in Fakir Mohamed vs Joseph Mugambi & 2 others [2005] KECA 340 (KLR) summarized the principles as follows: “ The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sucient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the eect of the delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors: see Mutiso vs Mwangi, Civil Application No. Nai. 255 of 1997 (ur), Mwangi vs Kenya Airways Ltd [2003] KLR 486”. 10. I have considered the Notice of Motion, the adavit and the annexures thereto as well as the law. The judgement was delivered on 15th October 2025. The applicant produced a discharge summary as evidence that he was discharged from hospital on 8th December 2025 as an explanation for the delay. However, there is evidence that the applicant appeared before the deputy registrar for a notice to show cause on 4th April 2026 and was in good health; otherwise, he would not have been able to participate in the hearing in which orders were made against him. I note that the application was led on 7th August 2026, which is close to ten months after the judgment was delivered, and eight months since he was discharged from hospital, which delay is inordinate and unexplained. The applicant has failed to give a good reason for the failure to le the application after he was discharged from the hospital. I am not satised with the reasons given in the supporting adavit. 11. Accordingly, I nd that the applicant does not deserve the exercise of discretion of this Court in his favour. The application is dismissed with costs to the respondent. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. ........................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1711/eng@2026-09-25 3

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