George Obiero Mburie v Sarah M. Otieno & Samwel Wasonga Oduor Ogola

(a) THAT this application be certified urgent and heard on priority basis; (b) THAT this Honourable Court be pleased to grant the Applicant leave to appeal out of time against the judgment and decision of Hon. E. Tsimonjero (Mr.), SRM, in the original suit UKWALA SPM ELC NO. E041 of 2019 delivered on 3rd October 2025; (c) THAT this Honourable Court do grant a temporary order of stay of execution of the decree in UKWALA SPM ELC NO. E041 of 2019 pending the hearing and determination of the present application; (d) THAT this Honourable Court do grant an order of stay of execution of the decree in UKWALA SPM ELC NO. E041 of 2019 pending the hearing and determination of the intended appeal; and (e) THAT costs of this application be in the intended appeal. 2.Upon the application being placed before this Court on 14 th April 2026 and having certified it urgent in view of the impending eviction pursuant to the judgment and decree herein, the Court granted a temporary order of stay of execution of the decree in UKWALA SPM ELC NO. E041 OF 2019 until 7th May 2026. 2

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3.Following the filing of the application, the 1 st and 2nd Respondents appointed the firm of Okoth Oluoch & Associates Advocates to act on their behalf, as evidenced by a Notice of Appointment of Advocates dated 4th May 2026. 4.The Applicant vide his Supporting Affidavit sworn on 13 th April 2026, depones that he was the Plaintiff in UKWALA SPM ELC NO. E041 OF 2019 while the Respondents herein were the Defendants in the said suit. 5.The Applicant contends that on 3 rd October 2025, the trial court delivered its judgment and decision in the aforementioned suit in favour of the Respondents, and annexes and a copy of the said judgment as "GOM-1". 6.The Applicant avers that due to the nature of the judgment, which among other orders directed his eviction from the suit property, he went into depression and had to be placed on medical supervision to ensure his well-being and in support thereof annexes and marks as "GOM-2" a copy of the medical report from the Jaramogi Oginga Odinga Teaching and Referral Hospital. Consequently, he was unable to file or to instruct his previous counsel to file, an appeal. 7.The Applicant depones that he is aggrieved and back to good health and intends to file an appeal against the said judgment. 3

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8.That he is desirous of appealing the judgment of the trial court and avers that the intended appeal has a high chance of success. The copy of a draft Memorandum of Appeal is annexed as "GOM-3". 9.The Applicant avers that the delay in filing the present application was occasioned by the fact that he was in depression and had to seek medical assistance and that he stands to face a miscarriage of justice if the application is not allowed while the intended appeal has good chances of success. 10.The Applicant depones that he is willing and prepared to abide by any reasonable and just conditions that the court may impose in enlarging the time within which to file an appeal. 11.The 1st and 2nd Respondents oppose the application vide separate but materially identical Replying Affidavits sworn on 19th May 2026, drawn by the firm of Okoth Oluoch & Associates Advocates. Each Respondent confirms that they were the Defendants in the original suit, that judgment was rendered on 3rd October 2025 dismissing the suit and allowing the Counterclaim and that they were advised that any appeal ought to have been lodged within thirty (30) days of the judgment. 4

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12.The Respondents depone that the Applicant, having failed to take note of the thirty (30) day window only moved the Court by the present application dated 13 th April 2026, more than six (6) months after judgment seeking stay of the orders of 3rd October 2025 and leave to appeal out of time and that the said orders are serious in nature, extending to an order of eviction within ninety (90) days should the Applicant fail to give vacant possession of the suit property. 13.That the Applicant failed to lodge an appeal within thirty (30) days after the judgment was rendered on 3 rd October 2025. 14.The Respondents impeach the letter from the Jaramogi Oginga Odinga Teaching and Referral Hospital which they note was purportedly signed on 10th April 2026, but that they can confirm that the Applicant was well after the judgment was delivered, as they saw him every day leaving for and returning from work at the suit property, they being neighbours. 15.That the letter is in their view, an afterthought, as the Applicant seeks thereby to deny the Respondents the fruits of the judgment dated 3rd October 2025. 16.The Respondents aver that the letter does not indicate when the Applicant was taken in for treatment, notwithstanding the findings noted therein that sometime 5

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between January and March 2026 he was unable to lodge his appeal. 17.That the doctor's report clearly notes that the Applicant could not file his appeal between the period of January and March 2026, this being clearly outside the thirty (30) day window period to lodge an appeal. 18.The Respondents contends that the Applicant’s condition only became apparent in January and March of 2026 and that the Applicant was well in a position to lodge an appeal after the judgment was delivered on 3rd October 2025. 19.The Respondents avers that the Applicant has not placed any reasonable explanation for the period between 3 rd October 2025 and 3rd November 2025, the thirty (30) day period within which the Applicant ought to have lodged an appeal. 20.That the Applicant has not placed before the Court any tangible reason why he failed to lodge his appeal within that period, yet he barely wants to move the Court more than one hundred and eighty (180) days after judgment was delivered. 21.The Respondents aver that the application is meant to delay and deny the Respondents from enjoying the fruits of the judgment dated 3rd October 2025. 6

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22.The Respondents pray that the application be dismissed with costs, contending that allowing it would be prejudicial and merely intended to delay the ends of justice. SUBMISSIONS 23.The Court ordered that the Application be canvassed by way of written submissions. However, a review of the record shows that the Applicant did not file any submissions in compliance with that direction. Consequently, the Court shall proceed to consider and determine the Application on its merits. RESPONDENT’S SUBMISSIONS 24.In opposition to the Application dated 13 th April, 2026, the Respondents filed written submissions dated 20 th May 2026 through the firm of Messrs. Okoth Oluoch & Associates. 25.Relying on the provisions of Section 79G of the Civil Procedure Act providing for extension of time within which to file an appeal from subordinate court to this court, the Respondents submit that before this Court considers an extension of time, the Applicant must satisfy that he has good and sufficient cause for filing the appeal out of time, a principle enunciated in Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR. 7

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26.The Respondents further rely on the Supreme Court’s decision in Nicholas Kiptoo Korir Arap Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, where the underlying principles applicable to an application for leave to appeal out of time were stated to include: “The underlying principles a court should consider in exercise of such discretion should include: (a) Extension of time is not a right of any 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 the 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 suffered by the respondent if the extension is granted; (f) Whether the application has been brought without undue delay.” 27.Similarly, the Respondents cite Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, which I will later refer to this decision. 8

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28.The Respondents further rely on County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR, where the Supreme Court emphasized that in considering whether or not to extend time, the whole period of delay should be stated and explained to the satisfaction of the court. 29.Applying the foregoing to the facts of this case , the Respondents submit that the Magistrate’s court delivered its judgment on 3rd October 2025 and granted a thirty (30) day stay of execution, yet the Applicant filed the instant application on 13th April 2026, approximately four (4) months after the requisite period within which to file the appeal, without placing any reasonable explanation for the period between 3rd October 2025 and 3rd November 2025, the thirty (30) day window for lodging the appeal. 30.The Respondents submit that they have perused the grounds set out in the Memorandum of Appeal and find that the appeal does not raise any arguable grounds, such that the chances of the appeal succeeding, were the application to be granted, are slim. They submit that the Applicant has not established to the satisfaction of the Court because time should be enlarged and that were the Court to decline the prayer for leave to appeal out of time, the prayer for stay of execution would automatically fail, there being no existing appeal to protect. 9

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31.They accordingly urge the Court to dismiss the application dated 13th April 2026 with costs. ANALYSIS AND DETERMINATION 32.I have carefully considered the application, affidavit in support thereto and replying affidavits in opposition as well as the submissions on record. The following issues commend determination: a) Whether the Applicant has demonstrated sufficient cause to warrant an extension of time to file an appeal. b) Whether, leave being granted, the Applicant is entitled to an order of stay of execution pending the hearing and determination of the intended appeal. c) Who bears the costs of the application? 33.The power of this Court to extend time for filing an appeal is discretionary, as provided under Section 79G of the Civil Procedure Act and Section 16A (2) of the Environment and Land Court Act. 34.Section 79G of the Civil Procedure Act states: “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the 10

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preparation and delivery of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 35.Further, Section 16A (2) of the Environment and Land Court Act states: “An appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.” 36.The powers to grant extension are discretionary. The governing principles for the exercise of this judicial discretion were succinctly set out in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997), where the Court of Appeal observed: "It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first; the length of the delay; secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted…" 11

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37.These principles were further affirmed by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] which underscored that extension of time is not a right granted as a matter of course but a discretionary remedy aimed at securing justice. “The Supreme Court’s discretion to extend time for filing an appeal was guided by key principles. Extension was not a right but an equitable remedy granted to deserving parties. The applicant must lay a satisfactory basis for the request. The decision was case-specific, requiring a reasonable explanation for the delay, absence of undue delay, and consideration of potential prejudice to the respondent. In some cases, such as election petitions, public interest may be a factor. Ultimately, the court balanced fairness, diligence, and the interests of justice in determining whether to grant an extension.” 38.Further, in the case of Paul Musili Wambua vs Attorney General & 2 Others (supra) cited by the Respondents the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated thus; “…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises 12

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unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. 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.” 39.This court will also consider if the applicant has established good and sufficient cause for filing the appeal out of time. This principle was well laid out in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR , also cited by the Respondents where the court emphasized that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so. 40.Applying the foregoing principles to the present application, I note that the judgment sought to be appealed was delivered on 3rd October 2025, while the present application was filed on 13th April 2026, some five months or so after the expiry of the thirty (30) day statutory period for filing an appeal. The Applicant attributes this delay, to depression for which he had to seek medical assistance, an account corroborated by a medical report from the Jaramogi Oginga Odinga Teaching and Referral Hospital disclosing a diagnosis 13

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of Major Depressive Disorder against a background of hypertension and diabetes, a Glasgow Coma Scale reading of 10/15 at its lowest point and a course of psychiatric and pharmacological treatment. That report places the onset of the Applicant's psychiatric decline in early November 2025 judgement having been delivered in early October 2025, its peak between January and March 2026 and his improvement in April 2026. 41.The medical report has been impugned but the deponents never sought for cross examination of the applicant on the depositions or even the maker of the document. My view has always been to leave such allegations touching on someone’s health to him and His God reminding the parties that what one decrees by his mouth could come to pass. That is that is the power of the tongue as stated in the Book of Proverbs. 42.In evaluating the circumstances of this case, this Court finds that a delay of five (5) months running from the expiry of the thirty (30) day period within which the Applicant ought to have filed his appeal on or about 3 rd November 2025, to the filing of the present application on 13 th April, 2026 is not so inordinate as to shut the Applicant out of the courtroom, particularly where the greater part of that substantially explained by documented incapacitation and the intended where delay appeal is medical raises arguable grounds. 14

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43.On whether the intended appeal raises arguable triable issues, the court draws guidance from Kenya Commercial Bank Limited v. Nicholas Ombija [2009] eKLR where it was stated; “An “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.” 44.A careful examination of the Memorandum of Appeal annexed to the application reveals three (3) detailed grounds of appeal that raise fundamental issues of both law and fact. 45.The issues raised in the Memorandum of Appeal are that the Learned Trial Magistrate erred in law and fact in not finding that the Applicant was an innocent purchaser for value as per the provisions of Section 26(1)(b) of the Land Registration Act and thus ought to have applied equitable remedies to protect his proprietary rights; that the Learned Trial Magistrate erred in law and fact by not applying precedents in relation to acquisition of land by innocent purchasers for value while analyzing the suit between the parties and that the Learned Trial Magistrate did not consider the evidence and submissions submitted by the Appellant in support of his case. These grounds are clearly triable, substantial and far from frivolous. 46.At this stage, the Court is not determining the ultimate success of the appeal, but merely confirming that these 15

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grounds constitute serious, bona fide questions of law and fact deserving of a full appellate hearing. 47.About the prejudice to be suffered by the Respondents, the respondents deponed that grant of leave will result into delay in them enjoying the fruits of the judgment. In my view, this is compensable by way of costs. Stay of Execution 48.As to the question of stay of execution, it is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates: “No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person 16

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aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside. No order for stay of execution shall be made under sub rule 1 unless: - (a). The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; and (b). Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.” 49.It is clear that even before the present application was filed, the Respondents had taken steps toward commencing the eviction of the Applicant and his family from the suit property and had blocked the access road to his homestead. The decree of the trial court cancelled the Applicant’s title and directed his eviction. Were execution to proceed before the intended appeal is heard and the Applicant were to succeed, the suit property would in all likelihood have changed hands or been altered, rendering any success on appeal nugatory and incapable of being remedied by an award of damages. In the view of this Court, this constitutes 17

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substantial loss within the meaning of Order 42 Rule 6 of the Civil Procedure Rules. 50.Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR: “No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 51.In the case of RWW -Vs- EKW (2019) eKLR the court held as follows: “…. the purpose of an application for stay of execution pending an appeal is to preserve the 18

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subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguard and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award cost….” “……indeed, to grant or refuse an application for stay or execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the Appellant with those of the Respondent…” 52.This court notes that the Applicant acquired title to the suit property on 14th November 2018. The trial court suit was filed in 2019. There will therefore be no prejudice suffered by the Respondents if there is stay of execution pending appeal. 53.The upshot of the above is that I find the Applicant's application is merited. I allow the same in the following terms: - 19

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i. The Applicant is granted leave to lodge and serve Memorandum of Appeal against the judgment and decree of Hon. E. Tsimonjero, Senior Resident Magistrate, delivered on 3rd October 2025 in UKWALA SPM ELC NO. E041 OF 2019, out of time, within thirty (30) days from the date of this ruling. ii. Stay of execution of the decree issued in UKWALA SPM ELC NO. E041 OF 2019 and in particular the order of eviction issued therein against the Applicant, pending the hearing and final determination of the intended appeal is hereby granted. iii. The Applicant shall deposit a bank guarantee from a reputable banking institution in Kenya for the sum of Kenya Shillings Seventy-Five Thousand One Hundred Thousand (Kshs. 75,000/-) being security for costs within 30 days of this ruling failure to which, the orders for enlargement of time shall automatically stand vacated on the 31st day. iv. Costs of this application shall be in the intended appeal. It is so ordered. Dated at Siaya this 8th Day of October 2026 HON. JUSTICE A. E. DENA JUDGE 20

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8/10/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Lugano for Appellant Mr. Odhiambo for Respondents Court assistant: Victor Bwire 21

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