Vincent George Okech v Samuel Okech Arodi & Silas Okiango Omulo

e) That the costs of the application be costs in the cause. 3. The application is supported by an affidavit sworn by the Applicant. The Applicant states that he is aggrieved by the judgment delivered on 31st August 2022 and wishes to appeal against the same. 4. The Applicant states that the delay in filing the appeal was inadvertent and excusable on account of his having been unwell and undergoing treatment. He further states that treatment notes marked VGO-3 were annexed to his affidavit. 5. The Applicant further deposes that there is a high likelihood of execution of the judgment, that the intended appeal raises serious and triable issues and that, unless stay is granted, the appeal may be rendered nugatory. He expresses willingness to abide by such reasonable conditions as the Court may impose. Procedural history 6. The application was placed before the Court under certificate of urgency on 29th July 2026. Upon considering the application, the Court directed the Applicant to effect service of the application together with the Court's directions upon the Respondent within five days from 30th July 2026 and to file an affidavit of service. 7. The Court further directed that upon service; a) The Respondent would have seven (7) days within which to file and serve a replying affidavit. b) The Court also directed the Applicant to file and serve written submissions within ten days. c) When the Court considered the matter on 10th September 2026, there was 2|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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no affidavit of service on record. There was equally no replying affidavit by the Respondent and no written submissions by the Applicant. d) The judgment annexed to the application indicates that the Applicant was the Plaintiff in the lower court. It further appears that neither the parties nor their advocates were present when the judgment was delivered. The Applicant has also annexed a draft Memorandum of Appeal. 8. The Court must therefore determine whether, on the material placed before it, the Applicant has established a proper basis for the exercise of the Court's discretion. Issues for determination 9. In my view, the issues arising for determination are: a) Whether the Applicant has satisfied the requirements for extension of time to appeal; b) Whether the Applicant has satisfied the requirements for stay of execution pending appeal; and c) Who should bear the costs of the application. Whether the Applicant has satisfied the requirements for extension of time 10. Section 79G of the Civil Procedure Act provides that an appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against. The proviso permits the Court to admit an appeal out of time where the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal within time. 11. In land matters, the Environment and Land Court is expressly vested with appellate jurisdiction over decisions of subordinate courts and local tribunals in matters falling within its jurisdiction. Section 13(4) of the Environment and Land Court Act provides that the Court shall exercise appellate jurisdiction 3|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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over decisions of subordinate courts or local tribunals in respect of matters falling within its jurisdiction. Section 16 provides for further appeals from the Environment and Land Court to the Court of Appeal. 12. The jurisdiction of this Court to consider an application for extension of time from a subordinate court is therefore properly invoked under Section 79G of the Civil Procedure Act. The discretion to enlarge time, however, is a judicial discretion which must be exercised on settled principles. 13. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), the Supreme Court stated: “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.” 14. The Supreme Court further stated that the party seeking extension bears the burden of laying a basis for the exercise of that discretion and that the Court should consider, among other matters, whether there is a reasonable explanation for the delay, whether the Respondent will suffer prejudice and whether the application has been brought without undue delay. 15. The Court of Appeal has consistently applied the same principles. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, which remains the locus classicus, the Court stated: “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.” The Court identified the principal considerations as the length of the delay, the reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the Respondent. 16. More recently, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the Court of Appeal emphasised that there is no prescribed maximum or minimum period of delay, but that the delay must be satisfactorily explained. The Court stated that: 4|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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“A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour.” 17. On the Length of delay, the judgment sought to be appealed against was delivered on 31st August 2022. The present application was filed on 24th July 2026, this represents a delay of approximately three years and eleven months from the date of judgment. The delay is therefore plainly substantial and cannot, in my view, properly be described as insignificant or merely technical. 18. The Applicant was required to explain the whole period of delay, not merely part of it. Reason for delay 19.The explanation advanced by the Applicant is that he was sick and undergoing treatment. However, the Applicant has not placed before the Court the treatment notes which he states were annexed and marked VGO-3. More importantly, the Applicant has not explained how his alleged illness accounts for the entire period between 31st August 2022 and 24th July 2026. 20. There is no evidence before the Court demonstrating when the illness commenced, its duration, the nature of the treatment, whether the illness incapacitated the Applicant from instructing counsel or filing an appeal, or why no steps were taken during the intervening period. 21. A general assertion of illness, without supporting evidence and without accounting for the entire period of delay, cannot in the circumstances constitute a satisfactory explanation. 22. The fact that the judgment appears to have been delivered in the absence of the parties is also not, by itself, sufficient explanation for the delay. The 5|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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Applicant has not expressly stated when he became aware of the judgment, when he obtained a copy thereof, or what steps he took thereafter to pursue an appeal. 23. The Court of Appeal has repeatedly held that a party seeking extension must account for the entire period of delay. In Muringa Company Limited v Archdiocese of Nairobi Registered Trustees, Civil Application No. 190 of 2019, the Court identified, among other considerations, the conduct of the parties, the need to balance the successful party's right to enjoy the judgment against the intending appellant's right of appeal, and whether the intended appeal is arguable or frivolous. 24. I therefore find that the Applicant has failed to satisfactorily explain the delay. Arguability of the Appeal. 25. On whether the intended appeal is arguable, the Applicant has annexed a draft Memorandum of Appeal. I have considered the same. The existence of a draft memorandum is relevant because the Court should avoid shutting out a potentially meritorious appeal merely on account of procedural default where the circumstances otherwise justify extension. 26. However, the existence of an arguable ground of appeal is only one of the factors the Court considers. It does not, on its own, entitle an applicant to extension of time. In the circumstances of this case, the failure to explain nearly four years of delay weighs substantially against the exercise of discretion in the Applicant's favour. Court Directions. 27. There is an additional and significant matter. On 29th July 2026, the Court expressly directed the Applicant to serve the application and the Court's directions upon the Respondent and to file an affidavit of service. No 6|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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affidavit of service has been filed. There is therefore no evidence that the Respondent was served or even notified of the application. 28. The Applicant was further directed to file and serve written submissions within ten days. No submissions are on record. Court orders and directions are not mere suggestions. They are intended to regulate proceedings and ensure that all parties are accorded a fair opportunity to be heard. 29. In Okoiti & 3 Others v Cabinet Secretary for the National Treasury and Planning & 10 Others [2023] KESC 69 (KLR), the Supreme Court underscored the importance of compliance with court orders, rules and practice directions, stating: 30. “Taking all the above matters into account, we must state that, this court has on several instances underscored the importance of compliance with its orders, rules and practice directions. With regard to filing and service of documents within the requisite time, the court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the rules or by the court, and affirmed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others, SC Petition No 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 others v Okoiti & 3 others, SC Petition (Application) No 13 of 2020 & Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR).” 31. It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court. 32. The Applicant has neither complied with the directions nor sought enlargement of the time within which to comply. There is also no explanation on record for the failure to serve the Respondent or file submissions. Exercise of Direction. 7|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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33. Article 159(2)(d) of the Constitution enjoins the Court to administer justice without undue regard to procedural technicalities. It does not, however, dispense with compliance with substantive procedural requirements or valid court orders. Article 159 is not a licence for a litigant to disregard directions of the Court. 34. I am therefore unable to exercise the Court's discretion in favour of an Applicant who has failed to establish a satisfactory explanation for the substantial delay and has subsequently failed to comply with express directions of the Court. Whether stay of execution should issue 35. The second substantive prayer is for stay of execution of the judgment delivered on 31st August 2022. 36. The applicable provision is Order 42 Rule 6 of the Civil Procedure Rules, which requires an applicant seeking stay to demonstrate, among other matters: i) That substantial loss may result unless stay is granted; ii) That the application has been made without unreasonable delay; and iii) That such security as the Court orders for the due performance of the decree has been given. 37. The three requirements are conjunctive. In Kenya Shell Limited v Kibiru & Another [1986] KLR 410, the Court of Appeal explained the importance of substantial loss in applications for stay. The principle has subsequently been repeatedly applied by the courts. Recent authority reiterates that substantial loss is what must be prevented by preserving the status quo because such loss would render the appeal nugatory. In particular, the Court observed as follows: 8|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.” 38. The Applicant merely states that there is a “high and probable likelihood” of execution and that the intended appeal may be rendered nugatory. He has not placed before the Court evidence demonstrating what specific substantial loss he will suffer. 39. The mere possibility or likelihood of execution does not, by itself, constitute substantial loss. Execution of a lawful judgment is itself a lawful process. 40. Further, the Applicant has not offered any security for the due performance of the decree. He merely states that he is willing to abide by any reasonable terms that the Court may impose. While such an undertaking is relevant, it does not amount to security having been furnished or to a concrete proposal capable of satisfying Order 42 Rule 6. 41. There is also the question of delay. An application for stay brought almost four years after judgment cannot be said, in the circumstances before this Court, to have been made without unreasonable delay. I therefore find that the Applicant has failed to satisfy the mandatory requirements for grant of stay of execution. Whether the draft Memorandum of Appeal should be deemed duly filed 42. The Applicant further seeks an order that the draft Memorandum of Appeal 9|Page HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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be deemed as duly filed and served upon payment of the requisite filing fees. 43. In view of my finding that the Applicant has not established sufficient cause for enlargement of time, there is no proper basis upon which the Court can deem the draft Memorandum of Appeal duly filed out of time. A document annexed to an application remains an annexure unless and until the Court grants the substantive order enlarging time and permits it to be treated as properly filed. The Court cannot deem the memorandum duly filed merely because it has been annexed to an unsuccessful application for extension of time. Determination. 44. I have considered the Notice of Motion, the supporting affidavit and the documents annexed thereto, the record before the Court and the applicable law. Although the Respondent has not filed a response, the absence of opposition does not relieve the Applicant of the burden of establishing the statutory and evidential basis for the discretionary orders sought. 45. The Applicant has not satisfactorily explained the approximately three years and eleven months delay in lodging the intended appeal. The alleged illness is unsupported by the treatment notes said to have been annexed and, in any event, does not explain the entire period of delay. 46. In the circumstances, I am not satisfied that the Applicant has demonstrated the good and sufficient cause contemplated under Section 79G of the Civil Procedure Act. 47. Having declined to extend time, the prayer for stay of execution equally cannot succeed. In any event, the Applicant has independently failed to satisfy the requirements of Order 42 Rule 6 of the Civil Procedure Rules by failing to 10 | P a g e HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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demonstrate substantial loss, failing to explain the delay in seeking stay and failing to offer adequate security. The Court is therefore unable to exercise its discretion in favour of the Applicant. 48. Consequently, the Notice of Motion dated 24th July 2026 is hereby dismissed. 49. In view of the fact that the Respondent did not enter appearance or file any response, there shall be no order as to costs. 50. It is so ordered. DATED and DELIVERED ELECTRONICALLY at Homa Bay this 25th day of September, 2026. J.W. WANYONYI- JUDGE In the presence of; 1. Mwamu for the Applicant- Absent 2. Court Assistant; Ms. Awino. 11 | P a g e HOMA BAY ELC MISC APPLICATION E029 OF 2026- RULING

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