EK ((Suing on Behalf of and as the Next Friend to KKM & JMM) v BMG & another

Advocates. The application is opposed. The two key issues that fall for determination in the application are: (i) Whether the application meets the criteria for enlarging time for lodging an appeal in this court; and (ii) Whether the application meets the criteria upon which this court exercises jurisdiction to grant an order of stay of execution. 3. The case of the applicant is that she was married to the 1st respondent and their marriage was annulled by the Court in Nkubu SRM Divorce Cause No. 9 of 2017. The decree absolute was issued, declaring that the marriage had been legally dissolved. 4. Through a matrimonial property cause vide Meru High Court Civil Case No. E001 of 2019 [OS], a judgment was issued decreeing that parcel number Abothoguchi/Kariene/4xx2 was matrimonial property and should be divided equally. Consequently, parcel number Abothoguchi/Kariene/4xx2 was subdivided into parcel number Abothoguchi/Kariene/6xx3 and parcel number Abothoguchi/ Kariene/6xx4, allocated to the applicant and respondent, respectively. 5. The appellant led Meru ELC Case No. E062 of 2023 seeking orders barring the respondent from selling his share of parcel number Abothuguchi/Kariene/6xx4. She led the said suit on behalf of and as the next friend to KKM aged 17 years (currently 20 years) and JMM aged 9 years (currently 12 years) against the respondents seeking a declaration that the 1st respondent held land parcel number Abothoguchi/Kariene/6xx4 in trust for his children and could not sell the same without providing for them. The lower court rendered its Judgment dated 6/3/2026 in which it dismissed her claim, holding that she lacked the right to compel the respondent to deal with his particular property in a particular way. 6. They are dissatised with the Judgment of the lower court and they intend to challenge it on appeal. The statutory period within which to lodge the appeal lapsed on 6/4/2026 or thereabout. The delay in ling the intended appeal was occasioned by the late issuance of the certied proceedings. There was also an inadvertent error arising from the ling of Meru HCCA/E047/2026, which was subsequently struck out. 7. The respondent opposed the application through a replying adavit dated 10/6/2026; a preliminary objection dated 10/6/2026; and written submissions dated 20/7/2026, led through Munene Kirimi & Co. Advocates. His case is that the application is unmerited. He states that the appellant violated Order 32 rule 12 of the Civil Procedure Rules by failing to seek the consent of KKM who is an adult prior to ling the instant appeal. He adds that the appellant never sought prior leave before instituting the instant appeal against the Judgment delivered on 6/3/2026, hence she violated Section 79 (G) of the Civil Procedure Act. 8. The respondent further argues the respondent that the applicant has failed to explain the two-months delay. The respondent adds that as a former spouse, the applicant has failed to establish her nexus with the suit land and has no basis to institute the appeal. He urges the court to dismiss the application with costs. 9. The court has considered the application, the response to the application, and the parties’ respective submissions. The following are the two key issues that fall for determination in the application: (i) Whether the application meets the criteria for enlarging the time within which to lodge an appeal to this court and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5992/eng@2026-09-24 2

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(ii) 10. Whether the application meets the criteria upon which this court exercises jurisdiction to grant an order of stay of execution. Does the application meet the criteria for enlargement of time? First, both Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act vest in this court discretionary jurisdiction to enlarge the limitation period relating to appeals to this court. Secondly, the general guiding principles on the question of enlargement of time were outlined by the Supreme Court of Kenya in Nicholas Kiptoo Arap Salat vs Independent Electoral and Boundaries Commission & 7 Others as follows: a. 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. b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. c. Whether the court should exercise discretion to extend time, is a consideration to be made on a case-by-case basis. d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court. e. Whether there will be any prejudice suered by the respondents if the extension is granted; f. Whether the application has been brought without undue delay; and g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 11. The limitation period for lodging an appeal to this court against the judgment of a magistrate court is 30 days. Suces it to state that, Parliament had good reasons for legislating a limitation period of 30 days. One clear rationale is that there is need for certainty on the rights and obligations of litigants once a judgment has been rendered. 12. The impugned judgment was rendered on 6/3/2026. The last day for lodging an appeal was 2/4/2026. The applicant did not lodge an appeal within the prescribed limitation period. The reason advanced to explain the delay is that the applicant was not supplied with certied proceedings within the limitation period. In her submissions, the applicant contends that she led an appeal in the High Court, to wit, Meru HCCA/E047/2026, which appeal was struck out for lack of jurisdiction. A perusal of the exhibited documents, including the court order dated 27/4/2026, reveals that the applicant led an application for enlargement of time in the High Court on or about 22/4/2026, which was 16 days after the expiry of the 30-day limitation period. The application was struck out by Githinji J on 27/4/2026. The present application was eld on 13/5/2026 and no explanation has been tendered to justify the inaction that ensued after the striking out order. A delay of even one day ought to be explained satisfactorily. Additionally, there is no proof that the applicant requested for a copy of the certied proceedings. 13. It is clear from the foregoing that the delay has not been explained. In the absence of a reasonable explanation for the delay, the court has no proper basis upon which to exercise jurisdiction to enlarge time. The court nds that the application dated 12/5/2026 does not meet the criteria for enlargement of time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5992/eng@2026-09-24 3

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14. That is not all. While aware that she rst needed to obtain leave before lodging an appeal to this court, upon her application being struck out by the High Court on 27/4/2026, the appellant/applicant stayed for 15 days after which she lodged an appeal in the Environment and Land Court without bothering to rst obtain an order enlarging time. In Nairobi Bottlers Limited v Ndung’u & another [2023] KESC 96 (KLR), the Supreme Court of Kenya emphasized that where there is delay in lodging an appeal, an enlargement order must be obtained before ling the appeal. The Supreme Court stated this: “ Time and time again, we have reiterated that ling an appeal out of time without leave and then seeking this court’s discretion to extend time is presumptive and inappropriate. As we stated in Nicholas Salat – “ No appeal can be led out of time without leave of the court. Such a ling renders the ‘document’ so led a nullity and of no legal consequence.” We therefore decline to accede to the request to deem the appeal, which was led out of time, as properly before us. To do so would be tantamount to sanctioning an illegality.” 15. Even if the applicant had tendered a proper explanation for the delay, there is the issue of the validity of the present application which has been brought by EK on behalf of KKM and JMM. The applicant has not controverted the respondent’s assertion that K is aged 20 years and has not authorized the applicant to initiate this appeal. The fact that the applicant seeks to validate the appeal on behalf of an adult and has not demonstrated the basis upon which such leave should be granted is in itself a factor that tilts against exercise of discretion in favour of the applicant. 16. The result is that the application dated 12/5/2026 seeking an order enlarging time for bringing an appeal to the Environment and Land Court is rejected for lack of merit. 17. 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. 18. 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. DATED, SIGNED AND DELIVERED AT MERU THIS 24TH DAY OF SEPTEMBER, 2026 B M EBOSO [MR] ELC JUDGE In the Presence of: Appellant – Absent Mr Muguna for the Respondent Court Assistant – Mr E Tupet https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5992/eng@2026-09-24 4

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