Makumbo v Makumbo & 2 others [2025] KEELC 2994 (KLR)

Makumbo v Makumbo & 2 others (Environment and Land Miscellaneous Application E006 of 2024) [2025] KEELC 2994 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2994 (KLR)

Republic of Kenya

In the Environment and Land Court at Chuka

Environment and Land Miscellaneous Application E006 of 2024

BM Eboso, J

March 27, 2025

Between

Atillio Nthiga Makumbo

Applicant

and

Jerica Gakumbo Makumbo

1st Respondent

Karigi Muchui

2nd Respondent

David Murithi Kirugua

3rd Respondent

Ruling

1. Falling for determination in this ruling is the notice of motion dated 19/4/2024, brought by Atillio Nthiga Makumbo (hereinafter referred to as “the applicant”). Through it, the applicant seeks an order enlarging the time for lodging an appeal against the judgment rendered by the Marimanti Principal Magistrate Court in Marimanti SPMC E&L Case No 5 of 2020. In addition, the applicant prays for an order staying execution of the said judgment. The application is contested.

2. The application was premised on the grounds set out in the motion; in the applicant’s supporting affidavit dated 19/4/2024; and in the applicant’s supplementary affidavit dated 3/2/2025. It was canvassed through written submissions dated 17/2/2025, filed by Ngina Mbugua & Company Advocates.

3. In summary, the applicant’s case is that the impugned judgment was delivered in the absence of all the parties to the case and that he became aware of the judgment after “a considerable time.” He is aggrieved by the finding of the trial court to the effect that he had failed to prove his case on the required standard of proof.

4. The applicant states that upon learning about the judgment, he requested for a copy of the judgment through a letter dated 29/11/2023, adding that he was issued with a copy of the judgment on 7/3/2024. It is the case of the applicant that he is “a disabled person and confined to a wheel chair, which made it difficult” for him to follow up on the matter promptly. He contends that despite his physical challenges, he made “every effort to obtain a copy of the judgment but the process was delayed by the court,” adding that this hindered his “ability to file an appeal within the required timelines.”

5. The applicant also blames his previous advocate for delaying to promptly present the application, admitting that the application is dated 19/4/2024 but was filed on 14/6/2024, a delay that he describes as beyond his control. He urges the court to grant him the reliefs.

6. The respondents opposed the application through the replying affidavits sworn on 28/1/2025 by David Murithi Kirigua; the replying affidavit sworn on 30/1/2025 by Karigi Muchui; and the joint written submissions dated 21/2/2025 filed by Murango Mwenda & Co Advocates. On the plea for an order of stay of execution, their case is that the trial court issued a negative order and there can be no stay order against a negative order.

7. On the applicant’s plea for an order enlarging the time for lodging an appeal, the respondents’ case is that the applicant has not given “any explanation for failing to file the intended appeal within the time allowed by the law,” adding that the delay of 16 months is inordinate. The respondents observe that the letter asking for a copy of the judgment was written on 29/11/2023 which was long after expiry of the prescribed limitation period of 30 days. They contend that the applicant has not explained why it took him 60 days to apply for a copy of the judgment. They fault the applicant for taking seven (7) months to bring to the attention of this court the present application subsequent to filing it. They urge the court to reject the application.

8. The court has considered the application, the response to the application and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. The two key questions that fall for determination in this ruling are: (i) Whether the application meets the criteria for enlargement of the limitation period 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 pending the hearing and disposal of an appeal before it. I will analyze and dispose the two issues sequentially in the above order.

9. The limitation period for lodging an appeal to this court against judgments of the lower courts is set by Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act. The frameworks in the two statutes provide for a limitation period of 30 days from the date of delivery of judgment. The two frameworks vest in this court discretionary jurisdiction to enlarge the limitation period. The legislated guiding principle in the two frameworks is that the discretionary jurisdiction should be exercised on the basis of good and sufficient cause.

10. The general jurisprudential principles that guide our courts whenever invited to exercise the above jurisdiction were outlined by the Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as follows:1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;2. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;3. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;4. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;5. Whether there would be any prejudice suffered by the respondents if the extension was granted;6. Whether the application had been brought without undue delay; and;7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

11. There is common ground that the impugned judgment was rendered in the absence of the parties involved in the case. Only the trial magistrate and his court assistant were in attendance. The applicant contends that he was not aware that the impugned judgment had been rendered. He further contends that when he learnt that the judgment had been delivered, he requested the trial court through a letter dated 29/11/2023 to avail to him a copy of the judgment and the trial court eventually supplied to him a copy of the judgment on 7/3/2024. The applicant has further explained that his follow-up efforts were substantially hindered by the physical disability that he has. He has explained that he was and he is still confined to a wheel chair, a physical disability that hinders his mobility. The foregoing, in the view of the court, is a satisfactory explanation for the delay.

12. In addition, the applicant contends that, at all maternal times, the suit land belonged to the late Makumbo Mumba, adding that the impugned transfers and registrations were effected without proper succession papers. He relies on the evidence tendered by the Court Administrator at Chuka Law Courts to the effect that the succession cause relating to the estate of the late Makumbo Mumba was still pending. This, in my view, is an arguable point that warrants consideration through the intended appeal.

13. For the above reasons, the court is satisfied that the application meets the criteria for enlargement of time.

14. On whether the application meets the criteria for the order of stay of execution, it is clear from the impugned judgment that the decree of the trial court is a negative decree. The decree does not have a positive order that would attract an order of stay of execution. Our courts have, in a line of decisions, been categorical that in the absence of a positive order, an order of stay of execution does not lie (see Western College of Arts & Applied Sciences v Oranga & other [1976] KLR 63). Consequently, the finding of the court on the second issue is that the criterion for grant of an order of stay of execution has not been met.

15. The result is that the application dated 19/4/2024 partially succeeds in the following terms:a.The limitation period for lodging an appeal to this court against the Judgment in Marimanti SPMC E&L Case No 5 of 2020 is enlarged by seven (7) days from today.b.Parties shall bear their respective costs of this Miscellaneous Application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT CHUKA THIS 27TH DAY OF MARCH, 2025. B M EBOSO [MR]JUDGEIn the Presence of:Ms. Mbugua for the ApplicantRespondent – AbsentCourt Assistant – Moses