I. Introduction
1. Before this Honorable Court for its determination is the Notice of Motion application dated 20 th January, 2026 filed by both JOSEPH KYALO ISIKA and ALICE KATIKU the 1 st and 2 nd Appellants/Applicants herein (Hereinafter referred to as “the Applicants”). The application is brought under the provisions of Sections 3A and 79G of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, 2010.
2. Upon service, the application was opposed by the Respondent opposed the application through filing of his Replying Affidavit sworn at Ukunda on 9 th March, 2026. The Honourable Court shall dwell on it later on in this Ruling hereof.
3. Having carefully considered the pleadings, affidavits, annexures and rival submissions, this Court now proceeds to determine the Application.
II. The case by the Applicants
4. The Applicants sought the following orders, verbatim: -
a. Spent
b. Spent
c. That pending the hearing and determination of this Application, this Honourable Court be pleased to stay the Judgement delivered herein on 23 rd February, 2024 in Msambweni and any other orders issued pursuant thereto, pending the hearing of the Appeal.
d. That the Honourable Court be pleased to extend time for filing and service of the Memorandum of Appeal and deem the Memorandum of Appeal lodged on 19 th January, 2026 and served upon the Respondent on 19 th January, 2026 as properly filed; and
e. That the costs incidental to this application abide the result of the said Appeal.
5. The application is premised on the grounds, testimonial facts and the averments made out under supported by the Supporting Affidavit dated on 20 th January, 2026 and sworn by the 1 st Applicant, JOSEPH KYALO ISIKA, together with a Further Affidavit dated and filed on 10 th April, 2026 and annextures marked “JKI” annexed thereto. The Deponent averred as follows that:-
a) He was an adult male of sound mind and understanding. He was the 1 st Applicant and acting with the authority of the 2 nd Respondent. He was conversant with the facts of the case. Hence competent to swear this affidavit.
b) On 23 rd February, 2024, a Judgement was entered in favour of the Respondent after a full hearing.
c) The Applicants were dissatisfied with the said Judgement; and that they immediately instructed their then Advocates on record, M/s. Selina Egesa & Co. Advocates, to lodge an Appeal on their behalf.
d) Their erstwhile Advocate requested for payment towards the prosecution of the intended Appeal, which payment he duly made in instalments totaling to a sum of Kenya Shillings Eighty Three Thousand (Kshs. 83,000/=) as evidenced by a filtered M-Pesa statement dated 13 th January, 2026 annexed to the Supporting Affidavit and marked as annexure “JKI - 2”.
e) He visited the said Advocate’s offices, went through the Judgement with her and wrote down all the issues that he desired to be considered in the intended Appeal.
f) Upon following up on the matter telephonically, his erstwhile Advocate assured them that the Appeal had been filed but that the Judge at Kwale, Hon. Lady Justice E. Dena, had been transferred and that the parties were awaiting the posting of a new Judge to the station.
g) Upon a subsequent enquiry, the said Advocate informed him that the physical presence of the parties would not be required at the hearing of the Appeal and that, having no reason to disbelieve his own Advocate, he patiently awaited the outcome of the Appeal.
h) It was his further deposition that on 31 st December, 2025, he received information that the Respondent had lost a relative and intended to conduct a burial on the suit property. He immediately called his Advocate to establish the way forward, whereupon she informed him that she was away and could not assist him, and instead advised him to seek the services of another Advocate vide a communication annexed and marked as annexure “JKI - 3”.
i) He deposed that he asked her to furnish him with the case number of the Appeal but she never responded. Upon visiting the Kwale Law Courts Registry to conduct an official search, he confirmed his worst fears – that no Appeal had ever been lodged on his behalf.
j) Upon the discovery of the default by his previous Advocate, he promptly instructed the current Advocates on record, M/s. G. A. Okumu & Co. Advocates, who lodged the Memorandum of Appeal on 19 th January, 2026 together with the instant application on 20 th January, 2026, being at the earliest time possible.
k) The filing of the Memorandum of Appeal out of time was not deliberate on his part but was a default visited upon him by his previous Advocates.
l) On the arguability of the intended Appeal, the 1 st Applicant deposed that he was the registered proprietor of the suit property and that the trial Court directed the cancellation of his title deed, which was a very drastic order. He annexed a copy of the title deed marked as annexure “JKI-4”.
m) He deposed that one of the grounds of the Appeal was that the Honourable Magistrate lacked the jurisdiction to order the cancellation of his title document.
n) Secondly, that the sale agreement which the Honourable Magistrate relied upon to cancel his title was between third parties who were not before the Court, and that the purported Vendor lacked the capacity to sell as he did not own the suit property, it being subject to succession proceedings which were yet to be undertaken. He annexed a copy of the said Sale Agreement dated 11 th May, 2012 marked as annexure “JKI -6”.
o) On the limb of stay of execution, the 1 st Applicant deposed that there was a real danger that unless a stay was granted pending the hearing and determination of the Appeal, the Respondent would move with speed to enforce the Judgement of 23 rd February, 2024 and thereby render the Appeal nugatory.
p) He deposed that the balance of convenience tilted in favour of the Applicants owing to the drastic effect of the decision of the trial Court, and that the Respondent would not suffer any prejudice if the application were granted.
q) In the Further Affidavit sworn on 10 th April, 2026, the 1 st Applicant deposed that it was clear from the Replying Affidavit that the Respondent was not opposing his application at all.
r) The matter was heard and determined in the lower Court did not take away his right of appeal; and that the law recognizes the filing of an appeal out of time where the reasons for the delay had been furnished.
s) He denied that the Respondent constructed structures on the suit property with the knowledge of the 2 nd Applicant, deposing instead that the Respondent undertook the said construction during the global pandemic COVID - 19 period with the full knowledge that the 2 nd Applicant lived in Machakos.
t) He maintained that the Kadhi’s Court could only conduct succession proceedings where the parties profess the Muslim faith, and reiterated that the Honourable Magistrate lacked jurisdiction to cancel his title deed, which constitutes an arguable ground of appeal.
u) He concluded that the subject matter before the Court comprises proprietary rights over a plot, which is quite weighty, and that the Court should not lock him out on account of the negligence of his previous Advocates.
III. Responses by the Respondents
6. As indicated hereinabove, the Respondent opposed the application through his Replying Affidavit sworn at Ukunda on 9 th March, 2026 by SAMWUEL NYAE NYAWA together with annextures marked as “SNN” annexed thereto. He deposed as follows that:-
a) He had been advised by his Advocates on record, which advice he verily believed to be true, that the application as filed is fatally defective, incompetent, misconceived, bad in law, without merit and has been filed in bad faith.
b) The issues raised in the application were deadwood. They had been exhaustively raised, canvassed and a judicious finding made thereon based on the facts and the law by the trial Court. He annexed a copy of the Judgement dated 23 rd February, 2024 marked as annexure “SNN - 1”.
c) The Applicants’ application and the orders sought were preposterous, uninformed and discourteous, since all along the Applicants had used the court process to present themselves as just, while their general conduct reeks of fraud, deceit, ill-intentions and all manner of mischief.
d) The Applicants had adopted a policy of ungoverned and overwhelming enthusiasm of rushing to the nearest court, not for the ends of justice, but in a forum-seeking attempt to sanitize their selfishness over almost everything and anything calculated to hoodwink the Court to bequeath them such unwarranted convenience.
e) The Applicants sought to use the court process to entreat themselves with dignity whereas they were indeed muffling grievance and masking injustice, having failed to be an epitome of integrity towards the Respondent by colluding in illegality to take away a lawfully acquired piece of property.
f) On the merits, the Respondent deposed that through his agent, he entered into a sale agreement on 11 th May, 2012 in respect of the suit property with the consent and knowledge of the 2 nd Applicant and her son (now deceased) at a consideration of a sum of Kenya Shillings One Hundred and Fourty Thousand (Kshs. 140,000/=);
g) The 1 st Applicant purported to have entered into a sale agreement in or about the year 2017 over the same property at a higher consideration of a sum of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=), being the motivation that drove the 2 nd Applicant to abandon the initial agreement without regard to the principles of the law of contract.
h) The Respondent proceeded to erect structures on the suit property with the knowledge of the 2 nd Applicant, her agents, servants and her family.
i) He came to learn that there was a succession process filed at the Kadhi’s Court, being Succession Cause No. 038 of 2021, whereas the owners of the suit property all professed the Christian faith. Thus raising suspicion of fraud, bad faith, impunity and breach of trust; and that shortly after the bungled succession process, the 1 st Applicant made payment in respect of the suit property and was, through the enumerated flawed processes, issued with a title deed in respect thereof, prompting the suit at the lower Court.
j) The Respondent concluded by deposing that the Applicants had not satisfied the legal criteria required to be granted the orders sought, and prayed that, in the interest of justice, the Appeal and the application be dismissed in their entirety with costs for being frivolous, vexatious and for abusing the court process with trivial and superseded issues.
IV. The Submissions by the Parties
7. On 27 th April, 2025, while in the presence of all parties, this Honourable Court directed that the said application be canvassed by way of written submissions. Subsequently, both the Applicants and the Respondent complied by filing their written submissions dated 28 th May, 2026.
8. Pursuant to that, the Honourable Court reserved 16 th July, 2026 as the date to deliver its Ruling accordingly.
A. The Written Submissions by the Applicants
9. The Learned Counsel for the Applicants, M/s. G. A. Okumu & Co. Advocates, filed their written submissions on the Applicants behalf. M/s. Okumu Advocate commenced their submissions by rehashing the background of the application and the depositions in the Supporting and Further Affidavits. Counsel submitted that the application was anchored on the provisions of Sections 3A and 79G of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010.
10. On the limb of extension of time. The Learned Counsel submitted that the Applicants had an arguable appeal with high chances of success as it raises substantive points of law, key among them being whether the Magistrate’s Court had the jurisdiction to issue the orders that it did, and that determining the Appeal by way of a technicality would prejudice and deny the Applicants their day in court and the Appeal being heard on merit. Counsel placed reliance on the decision in the case of:- “HCCCA No. E052 of 2021 – Michael Ntouthi Mitheu – Versus – Abraham Kivondo Musau (2021) eKLR, where Odunga, J. (as he then was) observed that the Courts are enjoined to give effect to the overriding objective in the exercise of their powers under the Civil Procedure Act, Cap. 21 and in the interpretation of any of its provisions pursuant to Section 1A(2) thereof.
11. The Counsel further relied on the decision by the Court of Appeal in the case of:- “Karny Zahrya & Another – Versus – Shalom Levi, Civil Application No. 80 of 2018 (2018) eKLR”, where Koome, JA. (as she then was) enumerated the considerations to be borne in mind while dealing with an application for extension of time. These included
i. the length of the delay involved;
ii. the reasons for the delay.
iii. the possible prejudice that each party stands to suffer;
iv. the conduct of the parties;
v. the need to balance the interests of a party who had a decision in his or her favour against the interest of a party who had a constitutionally underpinned right of appeal;
vi. the need to protect a party’s opportunity to fully agitate its dispute against the need to ensure the timely resolution of disputes;
vii. the public interest issues implicated in the appeal; and
viii. whether, prima facie, the intended appeal had chances of success or is a mere frivolity.
12. Additionally, the Counsel cited the case of:- “ Misc. Civil Application No. 19 of 2021 Malindi – Silas Kanyalu Mwatha – Versus – Josephine Kavine James” , where the Court, while allowing an application for extension of time in respect of an appeal filed six (6) months out of time, quoted with approval the celebrated holding in the case of: “ Leo Sila Mutiso – Versus – Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 (unreported)”, on the four (4) settled considerations, namely: first, the length of the delay; secondly, the reason for the delay; thirdly, 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.
13. The Learned Counsel submitted that the delay in filing the Appeal was excusable. That the application for extension was made without delay after the 1 st Applicant learnt that his previous Counsel had not acted on his instructions to file an appeal. That the reason for the delay had been fully explained and remained uncontroverted. That the Appeal had chances of success based on the grounds of appeal; and that the Respondent would not be prejudiced as the Appeal would be heard at the earliest time possible.
14. On the limb of stay of execution pending appeal. The Counsel submitted that the Applicants were alive to the tripartite conditions set out under the provision of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010, namely: that substantial loss may result to the Applicants unless the order was made; that the application had been made without unreasonable delay; and that the Applicants was willing to abide by any reasonable terms as to security ordered by the Court.
15. On substantial loss. The Learned Counsel averred that there was a real danger that unless a stay was granted pending the hearing and determination of the Appeal, the Respondent would move to enforce the Judgement of 23 rd February, 2024 and render the Appeal nugatory, and that the enforcement of the Judgement would have a serious and drastic effect on the right to ownership of property as envisioned under Article 40 of the Constitution of Kenya, 2010, in that it would lead to an eviction process and the ownership of the suit property changing hands. Counsel relied on the case of: “Antoine Ndiaye – Versus – African Virtual University (2015) eKLR”, where the Court reiterated that substantial loss occurring to an Applicant forms the basis of the Court’s jurisdiction in exercising its discretion in granting stay of execution.
16. On the willingness to furnish security. To buttress on this issue, the Learned Counsel relied on several cases. These were the case of:- “ Arun C. Sharma – Versus – Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others (2014) eKLR”, where the Court explained that the purpose of the security needed under the provision of Order 42 of the Civil Procedure Rules, 2010 was to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant and not to punish the Judgment debtor. Additionally, the case of “ James Wangalwa & Another – Versus – Agnes Naliaka Cheseto, Bungoma HC Misc. Application No. 42 of 2011 (2012) eKLR”, on the conjunctive nature of the three conditions for the grant of stay of execution pending appeal, and submitted that the Applicants had brought the application without undue delay, adequately demonstrated the substantial loss that they stood to suffer, and expressed their readiness to furnish or offer security for the due performance of the decree in the event that they are unsuccessful in the Appeal.
17. The Applicant urged the Court to grant the prayers sought from the application.
B. The Written Submissions by the Respondent
18. The Learned Counsels for the Respondent, M/s. Wonanio & Kabiaro Advocates, filed their written submissions. M/s. Munyoki Advocate commenced their submissions by adopting and relying entirely on the contents of the Replying Affidavit sworn on 9 th March, 2026 and the Supplementary Affidavit sworn on 8 th May, 2026, in opposition to the application. The Counsel noted, for the completeness of the record, that no Record of Appeal had been served upon the Respondent up to the time of the filing of the said submissions.
19. The Counsel averred that the trial Court properly evaluated the evidence on record, applied the correct principles of the law as far as the law of contract and land ownership are concerned, and arrived at a just and judicious determination, and accordingly urged this Honourable Court to find that the purported appeal lacked merit and was fatally defective, incompetent, misconceived and bad in law, and therefore fit to be dismissed with costs to the Respondent. Counsel distilled four (4) issues for determination, namely: whether the Appellants have laid a sufficient basis for the grant of leave to file an appeal out of time; whether the delay was inordinate and inexcusable; whether the intended appeal is arguable; and whether the Respondent shall suffer prejudice if the application is allowed.
20. On the first issue. The Learned Counsel submitted that whereas this Honourable Court has the discretionary power to extend time, such discretion must be exercised judiciously and only upon sufficient cause being shown, and that an applicant must demonstrate: sufficient reasons for the delay; that the delay was not inordinate; that the intended appeal was arguable; and that no prejudice shall be occasioned to the Respondent. Counsel placed reliance on the decision by the Supreme Court of Kenya in the case of “ Nicholas Kiptoo Arap Korir Salat – Versus – Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014 (2014) eKLR” , where the apex Court restated the guiding principles as follows:-
“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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay...”
21. Flowing from the foregoing, the Learned Counsel argued that the 1 st Appellant had failed to provide a satisfactory and credible explanation for the failure to file the appeal within the prescribed period. That the reasons advanced were vague, unsupported and insufficient to warrant the exercise of the discretion of this Honourable Court. The Learned Counsel opined that whereas the law was settled that a litigant should not suffer for the mistake of Counsel, each case must be determined on its own facts. The 1 st Appellant was bound to demonstrate diligence and vigilance in following up on his matter. It was submitted that it was very clear from the Supporting Affidavit of the 1 st Appellant that he took no meaningful steps to follow up on the purported appeal for a considerable period after the Judgement, and that if indeed the 1 st Appellant had instructed his Advocate and paid the requisite legal fees, one would reasonably had expected him to make inquiries regarding the status of the appeal within a reasonable time.
22. The Learned Counsel submitted that the 1 st Appellant’s conduct was indicative of acquiescence to the Judgement and a lack of diligence in pursuing his appellate rights. That the 1 st Appellant’s alleged interest in pursuing the appeal only arose when the Respondent commenced arrangements to inter the remains of his deceased sister on the suit property; and that the said sequence of events demonstrates that the present appeal is not motivated by a genuine desire to challenge the Judgement, but was an afterthought prompted by the Respondent’s intended use of the suit property. This Honourable Court, it was urged, should not aid a litigant who slept on his rights and only sought to revive litigation when subsequent events became unfavourable to him.
23. On the second issue. The Learned Counsel contended that the 1 st Appellant approached this Honourable Court after an unreasonable lapse of time and had failed to account for the lengthy period that lapsed between the delivery of the Judgement on 23 rd February, 2024 and the filing of the present application in the year 2026, approximately two (2) years later, thereby leaving substantial periods of the delay completely unexplained. The Counsel termed the delay manifestly excessive and far beyond the timelines contemplated under the law for the filing of appeals, adding that the mere receipt of emails that could not be substantiated, and the existence of such correspondence and proof of payment, do not automatically entitle the 1 st Appellant to an extension of time. The Counsel placed reliance on “ the locus classicus” of “ Leo Sila Mutiso – Versus – Rose Hellen Wangari Mwangi (Supra)” on the four (4) settled parameters, and on the decision by the Supreme Court in the celebrated case of:- “County Executive of Kisumu – Versus – County Government of Kisumu & 8 Others (2017) eKLR”, where the Court emphasized that extension of time was a discretionary remedy and that a party seeking such relief must satisfactorily explain the delay and demonstrate diligence in pursuing his rights.
24. On the third issue. The Learned Counsel averred that the Respondent would suffer substantial prejudice and loss if the Appellants was granted leave to appeal out of time. It was submitted that since the delivery of the Judgement in the year 2024, the Respondent had legitimately proceeded on the understanding that the dispute had been conclusively determined and that no appeal had been lodged within the period prescribed by the law; that the Respondent was therefore entitled to enjoy the fruits of the Judgement and to deal with the suit property in accordance with the rights recognized by the Court. That relying on the said Judgement, the Respondent has made significant personal and family decisions concerning the suit property, including building on the suit property and interring the remains of his deceased sister thereon.
25. The Counsel submitted that burials were matters of immense emotional, cultural, social and financial significance, and that allowing the appeal at this juncture would not only disrupt those arrangements, but would also occasion considerable distress not only to the Respondent but also to the members of his family. It was further submitted that the grant of leave would effectively deprive the Respondent of the benefits of a Judgement that had remained unchallenged for approximately two (2) years; that the purpose of statutory timelines was to ensure the orderly administration of justice and to protect successful litigants from being exposed to indefinite litigation; and that to permit the 1 st Appellant to revive the suit after such a prolonged period would occasion substantial prejudice to the Respondent, undermine the principle that litigation must come to an end and erode public confidence in the finality of judicial decisions.
26. On the fourth issue. The Counsel submitted that the intended appeal was devoid of merit and never raised any bona fide or arguable grounds warranting the exercise of the discretion of this Honourable Court, and that in determining an application for extension of time, the Court was entitled to consider whether the intended appeal raises arguable grounds.
27. On the question of the rightful and lawful ownership of the suit property. The Counsel relied on the provisions of Article 40 of the Constitution of Kenya, 2010 and Section 26(1) of the Land Registration Act, No. 3 of 2012, and submitted that the Respondent, through his agent and sister, one Mariamu Umazi, purchased the suit property vide a sale agreement dated 11 th May, 2012 at a consideration of a sum of Kenya Shillings One Fourty Thousand (Kshs. 140,000/=), which agreement was produced as Plaintiff Exhibit Number 1 at the trial, was never challenged by the Appellants and therefore remains valid, and fully satisfied the requirements of the provision of Section 3(3) of the Law of Contract Act, Cap. 23. The Learned Counsel submitted that, to the contrary, a major scrutiny could properly be directed at the 1 st Appellant who, knowing very well that the owners of the suit property professed the Christian faith, contributed to and by extension financed the succession process before the Kadhi’s Court, being Succession Cause No. E038 of 2021, in order to speed up the process of the illegal acquisition of the suit property, and that it is therein that the mischief, bad faith, fraud and ill-will lie. Relying on the provision of Section 5 of the Kadhis’ Courts Act, Cap. 11, Counsel submitted that the jurisdiction of a Kadhi’s Court was limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; that where a court proceeds with a case despite a lack of jurisdiction, any Judgments or orders it issues were null and void; and that the Kadhi’s Court accordingly acted ultra vires by presiding over matters concerning parties who never professed the Muslim faith, and its vesting order ought to be set aside. Counsel invited this Honourable Court to scrutinize Paragraph 7 of the Further Affidavit dated 10 th April, 2026 sworn by the 1 st Appellant and to treat the admission therein with the contempt that it deserves.
28. The Learned Counsel further submitted that the 1 st Appellant could not rely on a title deed whose root was questionable and, at the same time, contend that the trial Court lacked the jurisdiction to interrogate the validity of the said title deed and to cancel it, and that since the 1 st Appellant’s entire appeal was anchored on that ground, it was dead on arrival and could not sustain the appeal. Relying on the provision of Section 80 of the Land Registration Act, No. 3 of 2012 on the rectification of the register by order of the Court, the Counsel cited the decisions in the cases of:- “ Amos Tirop Matui & Another – Versus – Festus K. Kiprono & 2 Others (2018) eKLR and David Mukangula Saizi – Versus – Noah Namungu Bechenjo (2023) KEELC 270 (KLR)”, for the settled proposition that, following the amendments to the Environment and Land Court Act, 2011 and the Magistrates’ Courts Act, the Magistrates’ Courts have wide and extensive jurisdiction to hear and determine land disputes and to make any appropriate orders, including the cancellation of title deeds and the rectification of the register in compliance with the provision of Section 80 of the Land Registration Act, so long as the value of the subject matter fell within their pecuniary jurisdiction.
29. In conclusion, the Learned Counsel held that the Learned Trial Magistrate duly took into consideration the fact that the Respondent purchased the suit property in the year 2012, several years before the 1 st Appellant’s purported purchase in the year 2017. It was correctly found that the Respondent’s agreement had priority over that of the 1 st Appellant; that the 1 st Appellant had not demonstrated that the trial Court misapprehended the evidence, applied the wrong legal principles, ignored material evidence or arrived at a conclusion that was plainly erroneous; and that this Honourable Court should uphold the principle of finality in litigation, protect the Respondent’s accrued rights under the Judgement and dismiss the application with costs to the Respondent.
V. The issues for determination
30. The Honourable Court has keenly considered the Notice of Motion application dated 20 th January, 2026, the grounds on its face, the Supporting and Further Affidavits and the annextures thereto, the Replying and Supplementary Affidavits by the Respondent, the rival written submissions filed by the Learned Counsels for the parties, the cited authorities and the applicable law.
31. For
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1. Before this Honorable Court for its determination is the Notice of Motion application dated 20 th January, 2026 filed by both JOSEPH KYALO ISIKA and ALICE KATIKU the 1 st and 2 nd Appellants/Applicants herein (Hereinafter referred to as “the Applicants”). The application is brought under the provisions of Sections 3A and 79G of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, 2010.
2. Upon service, the application was opposed by the Respondent opposed the application through filing of his Replying Affidavit sworn at Ukunda on 9 th March, 2026. The Honourable Court shall dwell on it later on in this Ruling hereof.
3. Having carefully considered the pleadings, affidavits, annexures and rival submissions, this Court now proceeds to determine the Application.
II. The case by the Applicants
4. The Applicants sought the following orders, verbatim: -
a. Spent
b. Spent
c. That pending the hearing and determination of this Application, this Honourable Court be pleased to stay the Judgement delivered herein on 23 rd February, 2024 in Msambweni and any other orders issued pursuant thereto, pending the hearing of the Appeal.
d. That the Honourable Court be pleased to extend time for filing and service of the Memorandum of Appeal and deem the Memorandum of Appeal lodged on 19 th January, 2026 and served upon the Respondent on 19 th January, 2026 as properly filed; and
e. That the costs incidental to this application abide the result of the said Appeal.
5. The application is premised on the grounds, testimonial facts and the averments made out under supported by the Supporting Affidavit dated on 20 th January, 2026 and sworn by the 1 st Applicant, JOSEPH KYALO ISIKA, together with a Further Affidavit dated and filed on 10 th April, 2026 and annextures marked “JKI” annexed thereto. The Deponent averred as follows that:-
a) He was an adult male of sound mind and understanding. He was the 1 st Applicant and acting with the authority of the 2 nd Respondent. He was conversant with the facts of the case. Hence competent to swear this affidavit.
b) On 23 rd February, 2024, a Judgement was entered in favour of the Respondent after a full hearing.
c) The Applicants were dissatisfied with the said Judgement; and that they immediately instructed their then Advocates on record, M/s. Selina Egesa & Co. Advocates, to lodge an Appeal on their behalf.
d) Their erstwhile Advocate requested for payment towards the prosecution of the intended Appeal, which payment he duly made in instalments totaling to a sum of Kenya Shillings Eighty Three Thousand (Kshs. 83,000/=) as evidenced by a filtered M-Pesa statement dated 13 th January, 2026 annexed to the Supporting Affidavit and marked as annexure “JKI - 2”.
e) He visited the said Advocate’s offices, went through the Judgement with her and wrote down all the issues that he desired to be considered in the intended Appeal.
f) Upon following up on the matter telephonically, his erstwhile Advocate assured them that the Appeal had been filed but that the Judge at Kwale, Hon. Lady Justice E. Dena, had been transferred and that the parties were awaiting the posting of a new Judge to the station.
g) Upon a subsequent enquiry, the said Advocate informed him that the physical presence of the parties would not be required at the hearing of the Appeal and that, having no reason to disbelieve his own Advocate, he patiently awaited the outcome of the Appeal.
h) It was his further deposition that on 31 st December, 2025, he received information that the Respondent had lost a relative and intended to conduct a burial on the suit property. He immediately called his Advocate to establish the way forward, whereupon she informed him that she was away and could not assist him, and instead advised him to seek the services of another Advocate vide a communication annexed and marked as annexure “JKI - 3”.
i) He deposed that he asked her to furnish him with the case number of the Appeal but she never responded. Upon visiting the Kwale Law Courts Registry to conduct an official search, he confirmed his worst fears – that no Appeal had ever been lodged on his behalf.
j) Upon the discovery of the default by his previous Advocate, he promptly instructed the current Advocates on record, M/s. G. A. Okumu & Co. Advocates, who lodged the Memorandum of Appeal on 19 th January, 2026 together with the instant application on 20 th January, 2026, being at the earliest time possible.
k) The filing of the Memorandum of Appeal out of time was not deliberate on his part but was a default visited upon him by his previous Advocates.
l) On the arguability of the intended Appeal, the 1 st Applicant deposed that he was the registered proprietor of the suit property and that the trial Court directed the cancellation of his title deed, which was a very drastic order. He annexed a copy of the title deed marked as annexure “JKI-4”.
m) He deposed that one of the grounds of the Appeal was that the Honourable Magistrate lacked the jurisdiction to order the cancellation of his title document.
n) Secondly, that the sale agreement which the Honourable Magistrate relied upon to cancel his title was between third parties who were not before the Court, and that the purported Vendor lacked the capacity to sell as he did not own the suit property, it being subject to succession proceedings which were yet to be undertaken. He annexed a copy of the said Sale Agreement dated 11 th May, 2012 marked as annexure “JKI -6”.
o) On the limb of stay of execution, the 1 st Applicant deposed that there was a real danger that unless a stay was granted pending the hearing and determination of the Appeal, the Respondent would move with speed to enforce the Judgement of 23 rd February, 2024 and thereby render the Appeal nugatory.
p) He deposed that the balance of convenience tilted in favour of the Applicants owing to the drastic effect of the decision of the trial Court, and that the Respondent would not suffer any prejudice if the application were granted.
q) In the Further Affidavit sworn on 10 th April, 2026, the 1 st Applicant deposed that it was clear from the Replying Affidavit that the Respondent was not opposing his application at all.
r) The matter was heard and determined in the lower Court did not take away his right of appeal; and that the law recognizes the filing of an appeal out of time where the reasons for the delay had been furnished.
s) He denied that the Respondent constructed structures on the suit property with the knowledge of the 2 nd Applicant, deposing instead that the Respondent undertook the said construction during the global pandemic COVID - 19 period with the full knowledge that the 2 nd Applicant lived in Machakos.
t) He maintained that the Kadhi’s Court could only conduct succession proceedings where the parties profess the Muslim faith, and reiterated that the Honourable Magistrate lacked jurisdiction to cancel his title deed, which constitutes an arguable ground of appeal.
u) He concluded that the subject matter before the Court comprises proprietary rights over a plot, which is quite weighty, and that the Court should not lock him out on account of the negligence of his previous Advocates.
III. Responses by the Respondents
6. As indicated hereinabove, the Respondent opposed the application through his Replying Affidavit sworn at Ukunda on 9 th March, 2026 by SAMWUEL NYAE NYAWA together with annextures marked as “SNN” annexed thereto. He deposed as follows that:-
a) He had been advised by his Advocates on record, which advice he verily believed to be true, that the application as filed is fatally defective, incompetent, misconceived, bad in law, without merit and has been filed in bad faith.
b) The issues raised in the application were deadwood. They had been exhaustively raised, canvassed and a judicious finding made thereon based on the facts and the law by the trial Court. He annexed a copy of the Judgement dated 23 rd February, 2024 marked as annexure “SNN - 1”.
c) The Applicants’ application and the orders sought were preposterous, uninformed and discourteous, since all along the Applicants had used the court process to present themselves as just, while their general conduct reeks of fraud, deceit, ill-intentions and all manner of mischief.
d) The Applicants had adopted a policy of ungoverned and overwhelming enthusiasm of rushing to the nearest court, not for the ends of justice, but in a forum-seeking attempt to sanitize their selfishness over almost everything and anything calculated to hoodwink the Court to bequeath them such unwarranted convenience.
e) The Applicants sought to use the court process to entreat themselves with dignity whereas they were indeed muffling grievance and masking injustice, having failed to be an epitome of integrity towards the Respondent by colluding in illegality to take away a lawfully acquired piece of property.
f) On the merits, the Respondent deposed that through his agent, he entered into a sale agreement on 11 th May, 2012 in respect of the suit property with the consent and knowledge of the 2 nd Applicant and her son (now deceased) at a consideration of a sum of Kenya Shillings One Hundred and Fourty Thousand (Kshs. 140,000/=);
g) The 1 st Applicant purported to have entered into a sale agreement in or about the year 2017 over the same property at a higher consideration of a sum of Kenya Shillings Four Hundred Thousand (Kshs. 400,000/=), being the motivation that drove the 2 nd Applicant to abandon the initial agreement without regard to the principles of the law of contract.
h) The Respondent proceeded to erect structures on the suit property with the knowledge of the 2 nd Applicant, her agents, servants and her family.
i) He came to learn that there was a succession process filed at the Kadhi’s Court, being Succession Cause No. 038 of 2021, whereas the owners of the suit property all professed the Christian faith. Thus raising suspicion of fraud, bad faith, impunity and breach of trust; and that shortly after the bungled succession process, the 1 st Applicant made payment in respect of the suit property and was, through the enumerated flawed processes, issued with a title deed in respect thereof, prompting the suit at the lower Court.
j) The Respondent concluded by deposing that the Applicants had not satisfied the legal criteria required to be granted the orders sought, and prayed that, in the interest of justice, the Appeal and the application be dismissed in their entirety with costs for being frivolous, vexatious and for abusing the court process with trivial and superseded issues.
IV. The Submissions by the Parties
7. On 27 th April, 2025, while in the presence of all parties, this Honourable Court directed that the said application be canvassed by way of written submissions. Subsequently, both the Applicants and the Respondent complied by filing their written submissions dated 28 th May, 2026.
8. Pursuant to that, the Honourable Court reserved 16 th July, 2026 as the date to deliver its Ruling accordingly.
A. The Written Submissions by the Applicants
9. The Learned Counsel for the Applicants, M/s. G. A. Okumu & Co. Advocates, filed their written submissions on the Applicants behalf. M/s. Okumu Advocate commenced their submissions by rehashing the background of the application and the depositions in the Supporting and Further Affidavits. Counsel submitted that the application was anchored on the provisions of Sections 3A and 79G of the Civil Procedure Act, Cap. 21 and Order 50 Rule 6 of the Civil Procedure Rules, 2010.
10. On the limb of extension of time. The Learned Counsel submitted that the Applicants had an arguable appeal with high chances of success as it raises substantive points of law, key among them being whether the Magistrate’s Court had the jurisdiction to issue the orders that it did, and that determining the Appeal by way of a technicality would prejudice and deny the Applicants their day in court and the Appeal being heard on merit. Counsel placed reliance on the decision in the case of:- “HCCCA No. E052 of 2021 – Michael Ntouthi Mitheu – Versus – Abraham Kivondo Musau (2021) eKLR, where Odunga, J. (as he then was) observed that the Courts are enjoined to give effect to the overriding objective in the exercise of their powers under the Civil Procedure Act, Cap. 21 and in the interpretation of any of its provisions pursuant to Section 1A(2) thereof.
11. The Counsel further relied on the decision by the Court of Appeal in the case of:- “Karny Zahrya & Another – Versus – Shalom Levi, Civil Application No. 80 of 2018 (2018) eKLR”, where Koome, JA. (as she then was) enumerated the considerations to be borne in mind while dealing with an application for extension of time. These included
i. the length of the delay involved;
ii. the reasons for the delay.
iii. the possible prejudice that each party stands to suffer;
iv. the conduct of the parties;
v. the need to balance the interests of a party who had a decision in his or her favour against the interest of a party who had a constitutionally underpinned right of appeal;
vi. the need to protect a party’s opportunity to fully agitate its dispute against the need to ensure the timely resolution of disputes;
vii. the public interest issues implicated in the appeal; and
viii. whether, prima facie, the intended appeal had chances of success or is a mere frivolity.
12. Additionally, the Counsel cited the case of:- “ Misc. Civil Application No. 19 of 2021 Malindi – Silas Kanyalu Mwatha – Versus – Josephine Kavine James” , where the Court, while allowing an application for extension of time in respect of an appeal filed six (6) months out of time, quoted with approval the celebrated holding in the case of: “ Leo Sila Mutiso – Versus – Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 (unreported)”, on the four (4) settled considerations, namely: first, the length of the delay; secondly, the reason for the delay; thirdly, 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.
13. The Learned Counsel submitted that the delay in filing the Appeal was excusable. That the application for extension was made without delay after the 1 st Applicant learnt that his previous Counsel had not acted on his instructions to file an appeal. That the reason for the delay had been fully explained and remained uncontroverted. That the Appeal had chances of success based on the grounds of appeal; and that the Respondent would not be prejudiced as the Appeal would be heard at the earliest time possible.
14. On the limb of stay of execution pending appeal. The Counsel submitted that the Applicants were alive to the tripartite conditions set out under the provision of Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010, namely: that substantial loss may result to the Applicants unless the order was made; that the application had been made without unreasonable delay; and that the Applicants was willing to abide by any reasonable terms as to security ordered by the Court.
15. On substantial loss. The Learned Counsel averred that there was a real danger that unless a stay was granted pending the hearing and determination of the Appeal, the Respondent would move to enforce the Judgement of 23 rd February, 2024 and render the Appeal nugatory, and that the enforcement of the Judgement would have a serious and drastic effect on the right to ownership of property as envisioned under Article 40 of the Constitution of Kenya, 2010, in that it would lead to an eviction process and the ownership of the suit property changing hands. Counsel relied on the case of: “Antoine Ndiaye – Versus – African Virtual University (2015) eKLR”, where the Court reiterated that substantial loss occurring to an Applicant forms the basis of the Court’s jurisdiction in exercising its discretion in granting stay of execution.
16. On the willingness to furnish security. To buttress on this issue, the Learned Counsel relied on several cases. These were the case of:- “ Arun C. Sharma – Versus – Ashana Raikundalia t/a A. Raikundalia & Co. Advocates & 2 Others (2014) eKLR”, where the Court explained that the purpose of the security needed under the provision of Order 42 of the Civil Procedure Rules, 2010 was to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant and not to punish the Judgment debtor. Additionally, the case of “ James Wangalwa & Another – Versus – Agnes Naliaka Cheseto, Bungoma HC Misc. Application No. 42 of 2011 (2012) eKLR”, on the conjunctive nature of the three conditions for the grant of stay of execution pending appeal, and submitted that the Applicants had brought the application without undue delay, adequately demonstrated the substantial loss that they stood to suffer, and expressed their readiness to furnish or offer security for the due performance of the decree in the event that they are unsuccessful in the Appeal.
17. The Applicant urged the Court to grant the prayers sought from the application.
B. The Written Submissions by the Respondent
18. The Learned Counsels for the Respondent, M/s. Wonanio & Kabiaro Advocates, filed their written submissions. M/s. Munyoki Advocate commenced their submissions by adopting and relying entirely on the contents of the Replying Affidavit sworn on 9 th March, 2026 and the Supplementary Affidavit sworn on 8 th May, 2026, in opposition to the application. The Counsel noted, for the completeness of the record, that no Record of Appeal had been served upon the Respondent up to the time of the filing of the said submissions.
19. The Counsel averred that the trial Court properly evaluated the evidence on record, applied the correct principles of the law as far as the law of contract and land ownership are concerned, and arrived at a just and judicious determination, and accordingly urged this Honourable Court to find that the purported appeal lacked merit and was fatally defective, incompetent, misconceived and bad in law, and therefore fit to be dismissed with costs to the Respondent. Counsel distilled four (4) issues for determination, namely: whether the Appellants have laid a sufficient basis for the grant of leave to file an appeal out of time; whether the delay was inordinate and inexcusable; whether the intended appeal is arguable; and whether the Respondent shall suffer prejudice if the application is allowed.
20. On the first issue. The Learned Counsel submitted that whereas this Honourable Court has the discretionary power to extend time, such discretion must be exercised judiciously and only upon sufficient cause being shown, and that an applicant must demonstrate: sufficient reasons for the delay; that the delay was not inordinate; that the intended appeal was arguable; and that no prejudice shall be occasioned to the Respondent. Counsel placed reliance on the decision by the Supreme Court of Kenya in the case of “ Nicholas Kiptoo Arap Korir Salat – Versus – Independent Electoral and Boundaries Commission & 7 Others, SC Application No. 16 of 2014 (2014) eKLR” , where the apex Court restated the guiding principles as follows:-
“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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay...”
21. Flowing from the foregoing, the Learned Counsel argued that the 1 st Appellant had failed to provide a satisfactory and credible explanation for the failure to file the appeal within the prescribed period. That the reasons advanced were vague, unsupported and insufficient to warrant the exercise of the discretion of this Honourable Court. The Learned Counsel opined that whereas the law was settled that a litigant should not suffer for the mistake of Counsel, each case must be determined on its own facts. The 1 st Appellant was bound to demonstrate diligence and vigilance in following up on his matter. It was submitted that it was very clear from the Supporting Affidavit of the 1 st Appellant that he took no meaningful steps to follow up on the purported appeal for a considerable period after the Judgement, and that if indeed the 1 st Appellant had instructed his Advocate and paid the requisite legal fees, one would reasonably had expected him to make inquiries regarding the status of the appeal within a reasonable time.
22. The Learned Counsel submitted that the 1 st Appellant’s conduct was indicative of acquiescence to the Judgement and a lack of diligence in pursuing his appellate rights. That the 1 st Appellant’s alleged interest in pursuing the appeal only arose when the Respondent commenced arrangements to inter the remains of his deceased sister on the suit property; and that the said sequence of events demonstrates that the present appeal is not motivated by a genuine desire to challenge the Judgement, but was an afterthought prompted by the Respondent’s intended use of the suit property. This Honourable Court, it was urged, should not aid a litigant who slept on his rights and only sought to revive litigation when subsequent events became unfavourable to him.
23. On the second issue. The Learned Counsel contended that the 1 st Appellant approached this Honourable Court after an unreasonable lapse of time and had failed to account for the lengthy period that lapsed between the delivery of the Judgement on 23 rd February, 2024 and the filing of the present application in the year 2026, approximately two (2) years later, thereby leaving substantial periods of the delay completely unexplained. The Counsel termed the delay manifestly excessive and far beyond the timelines contemplated under the law for the filing of appeals, adding that the mere receipt of emails that could not be substantiated, and the existence of such correspondence and proof of payment, do not automatically entitle the 1 st Appellant to an extension of time. The Counsel placed reliance on “ the locus classicus” of “ Leo Sila Mutiso – Versus – Rose Hellen Wangari Mwangi (Supra)” on the four (4) settled parameters, and on the decision by the Supreme Court in the celebrated case of:- “County Executive of Kisumu – Versus – County Government of Kisumu & 8 Others (2017) eKLR”, where the Court emphasized that extension of time was a discretionary remedy and that a party seeking such relief must satisfactorily explain the delay and demonstrate diligence in pursuing his rights.
24. On the third issue. The Learned Counsel averred that the Respondent would suffer substantial prejudice and loss if the Appellants was granted leave to appeal out of time. It was submitted that since the delivery of the Judgement in the year 2024, the Respondent had legitimately proceeded on the understanding that the dispute had been conclusively determined and that no appeal had been lodged within the period prescribed by the law; that the Respondent was therefore entitled to enjoy the fruits of the Judgement and to deal with the suit property in accordance with the rights recognized by the Court. That relying on the said Judgement, the Respondent has made significant personal and family decisions concerning the suit property, including building on the suit property and interring the remains of his deceased sister thereon.
25. The Counsel submitted that burials were matters of immense emotional, cultural, social and financial significance, and that allowing the appeal at this juncture would not only disrupt those arrangements, but would also occasion considerable distress not only to the Respondent but also to the members of his family. It was further submitted that the grant of leave would effectively deprive the Respondent of the benefits of a Judgement that had remained unchallenged for approximately two (2) years; that the purpose of statutory timelines was to ensure the orderly administration of justice and to protect successful litigants from being exposed to indefinite litigation; and that to permit the 1 st Appellant to revive the suit after such a prolonged period would occasion substantial prejudice to the Respondent, undermine the principle that litigation must come to an end and erode public confidence in the finality of judicial decisions.
26. On the fourth issue. The Counsel submitted that the intended appeal was devoid of merit and never raised any bona fide or arguable grounds warranting the exercise of the discretion of this Honourable Court, and that in determining an application for extension of time, the Court was entitled to consider whether the intended appeal raises arguable grounds.
27. On the question of the rightful and lawful ownership of the suit property. The Counsel relied on the provisions of Article 40 of the Constitution of Kenya, 2010 and Section 26(1) of the Land Registration Act, No. 3 of 2012, and submitted that the Respondent, through his agent and sister, one Mariamu Umazi, purchased the suit property vide a sale agreement dated 11 th May, 2012 at a consideration of a sum of Kenya Shillings One Fourty Thousand (Kshs. 140,000/=), which agreement was produced as Plaintiff Exhibit Number 1 at the trial, was never challenged by the Appellants and therefore remains valid, and fully satisfied the requirements of the provision of Section 3(3) of the Law of Contract Act, Cap. 23. The Learned Counsel submitted that, to the contrary, a major scrutiny could properly be directed at the 1 st Appellant who, knowing very well that the owners of the suit property professed the Christian faith, contributed to and by extension financed the succession process before the Kadhi’s Court, being Succession Cause No. E038 of 2021, in order to speed up the process of the illegal acquisition of the suit property, and that it is therein that the mischief, bad faith, fraud and ill-will lie. Relying on the provision of Section 5 of the Kadhis’ Courts Act, Cap. 11, Counsel submitted that the jurisdiction of a Kadhi’s Court was limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; that where a court proceeds with a case despite a lack of jurisdiction, any Judgments or orders it issues were null and void; and that the Kadhi’s Court accordingly acted ultra vires by presiding over matters concerning parties who never professed the Muslim faith, and its vesting order ought to be set aside. Counsel invited this Honourable Court to scrutinize Paragraph 7 of the Further Affidavit dated 10 th April, 2026 sworn by the 1 st Appellant and to treat the admission therein with the contempt that it deserves.
28. The Learned Counsel further submitted that the 1 st Appellant could not rely on a title deed whose root was questionable and, at the same time, contend that the trial Court lacked the jurisdiction to interrogate the validity of the said title deed and to cancel it, and that since the 1 st Appellant’s entire appeal was anchored on that ground, it was dead on arrival and could not sustain the appeal. Relying on the provision of Section 80 of the Land Registration Act, No. 3 of 2012 on the rectification of the register by order of the Court, the Counsel cited the decisions in the cases of:- “ Amos Tirop Matui & Another – Versus – Festus K. Kiprono & 2 Others (2018) eKLR and David Mukangula Saizi – Versus – Noah Namungu Bechenjo (2023) KEELC 270 (KLR)”, for the settled proposition that, following the amendments to the Environment and Land Court Act, 2011 and the Magistrates’ Courts Act, the Magistrates’ Courts have wide and extensive jurisdiction to hear and determine land disputes and to make any appropriate orders, including the cancellation of title deeds and the rectification of the register in compliance with the provision of Section 80 of the Land Registration Act, so long as the value of the subject matter fell within their pecuniary jurisdiction.
29. In conclusion, the Learned Counsel held that the Learned Trial Magistrate duly took into consideration the fact that the Respondent purchased the suit property in the year 2012, several years before the 1 st Appellant’s purported purchase in the year 2017. It was correctly found that the Respondent’s agreement had priority over that of the 1 st Appellant; that the 1 st Appellant had not demonstrated that the trial Court misapprehended the evidence, applied the wrong legal principles, ignored material evidence or arrived at a conclusion that was plainly erroneous; and that this Honourable Court should uphold the principle of finality in litigation, protect the Respondent’s accrued rights under the Judgement and dismiss the application with costs to the Respondent.
V. The issues for determination
30. The Honourable Court has keenly considered the Notice of Motion application dated 20 th January, 2026, the grounds on its face, the Supporting and Further Affidavits and the annextures thereto, the Replying and Supplementary Affidavits by the Respondent, the rival written submissions filed by the Learned Counsels for the parties, the cited authorities and the applicable law.
31. For
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