1. Vide a notice of motion (application) dated 9th February 2026, the applicant herein seeks leave to file an appeal against the judgment of Hon P A Olengo delivered on 9th February, 2025 in Busia CMC ELC Case No. E066 of 2022 and an order of stay of execution of the said judgment pending hearing and determination of the application and the intended appeal.
2. As can be discerned from the grounds on the face of the application and the affidavit sworn in support thereof, the application is premised on the grounds that the applicant was aggrieved by the judgment of the trial court; that the judgment was delivered in the absence of the parties and without issuance of notice of its delivery; that there had been delay in delivery of the judgment as the judgment was not delivered on the date it was slated to be delivered; that the applicant had written to the court inquiring when the judgment would be delivered which enquiries were not responded to by the trial court; that by the time the applicant got to know about delivery of the judgment, time within which he ought to have appealed had lapsed; that the applicant is apprehensive that the 1st respondent may execute the decree issued in his favour in respect of the judgment thereby occasioning it and innocent-third party occupants substantial and irreparable prejudice.
3. The applicant has further stated that it ready and willing to furnish such security for due performance of the decree if the court orders it to do so; that, prejudice, if any, to be occasioned on the 1st respondent is compensable by way of costs if the appeal fails and that it is in the interest of justice that the subject matter of the appeal be preserved to prevent the intended appeal being rendered nugatory.
4. In the affidavit sworn in support of the application, the applicant has annexed the following documents: -
i) Extract of minutes of the 156th Ordinary Town Planning and Works Committee meeting held on Friday 23rd October 2009 which indicate that the applicant was given permission to pursue and acquire the letter of allotment for Plot No. W/62/93/11 from the Commissioner of Lands in Nairobi;
ii) Letter dated 4th December 2009 from the Town Clerk, Busia County Council, to the Commissioner of Lands indicating that the applicant’s application for a letter of allotment had been approved by the County Council;
iii) Letter dated 3rd September 2013 from the applicant to the Chairman National Land Commission concerning its interest in the suit property;
iv) Letter dated 6th February 2014 from National Land Commission to the applicant confirming that the suit property is planned for it;
v) Letter dated 24th October 2014 from the Ministry of Land to Director of Surveys showing that the grant for parcel number 545 had been approved;
vi) Letter dated 19th October 2020 from the applicant to Cabinet Secretary Ministry of Land and Physical Planning complaining about fraudulent acquisition of the suit land, parcel number 545 Busia town, and requesting that the letter of allotment held by the applicant be cancelled;
vii) Letter dated 15th January 2021 from Gikera & Vadgama Advocates to the Directorate of Criminal Investigations complaining about fraudulent dealing with the suit property;
viii) Letter dated 5th March 2025 from Gikera and Vadgama Advocates to the Chief Executive Officer, Busia Magistrate Court seeking to know when judgment would be delivered;
ix) Letter dated 7th May 2025 from Gikera and Vadgama Advocates to the Chief Executive Officer, Busia Magistrate Court seeking to know the status of the judgment;
x) Letter dated 31st July 2025 from Gikera and Vadgama Advocates to the Chief Justice complaining about delay in delivery of judgment in Busia ELC No. 66 of 2022;
xi) Follow up letter to the letter dated 31st July 2025 to the Chief Justice, dated 20th November 2025.
xii) Application for execution of decree and judgment given in Busia MCELC No. 66 of 2022, dated 16th December 2025;
xiii) Judgment delivered on 9th December 2025 in Busia CMC ELC Case No. 66 of 2022.
xiv) Draft Memorandum of Appeal.
5. In reply and opposition to the application, the 1st respondent, through the replying affidavit he swore on 4th February 2026, contends that the explanation given by the applicant for not filing his intended appeal is not convincing as he had unfettered access to the court’s CTS to keep it self-abreast with the status of the case; that the applicant does not have the right of appeal because he has not done anything towards the satisfaction of the decree of the court; that the subject matter of the appeal is not liable to waste or degradation; that the applicant has not demonstrated that if he takes possession he may sale, transfer and or charge the property thereby rendering the intended appeal nugatory.
6. It is the 1st respondents case, that the interest of justice weighs more against granting the orders sought; that the instant application has been brought in bad faith-meant to circumvent his application seeking to enforce the decree issued in his favour.
7. When the matter came up for directions on 20th May 2026, Mr. Oroka Counsel for the 2nd and 3rd respondents, informed the court that the 2nd and the 3rd respondents are not opposing the application.
8. The 1st respondent did not file and serve his submissions within the time given by the court and at all.
9. In its submissions dated 13th April 2026, the applicant has made reference to the principles that undergird an application for stay of execution pending appeal set out under Order 42 Rule 6 of the Civil Procedures Rules and numerous decided cases, like Antoine Ndiaye v. African Virtue University (2015) Eklr, Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR and submitted that it has satisfied the requirements for grant of stay of execution under Order 42 rule 6 of the Civil Procedure Rules.
10. I have considered the application, the response thereto and the submissions. I find the sole issue for determination to be whether the applicant has made up a case for being granted the orders sought.
11. The principles that guide courts in considering an application for leave to file an appeal out of time were discussed in Odongo v Kamadi (Civil Miscellaneous Application E035 of 2025) (2026) KEHC 2129 (KLR) (12 February 2026) (Ruling) thus: -
“...Section 79G of the Civil Procedure Act provides that:
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 preparation and delivery to the appellant 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.
44. In the case of Mbukoni Services Limited and another Vs Mutinda Reuben Nzili & 3 Others H. C at Machakos Misc. App N0 E077 of 2021 Odunga J (as he then was) held:
“It is clear therefore that the decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion and just like any other exercise of discretion………… must be fixed principles and not private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The Court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. One of those judicial principles expressly provided for in the above provision is that the applicant must satisfy the Court that he has a good cause for doing so…”
45. Further, in Leo Sila Mutiso vs. Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231 the Court of Appeal set out the factors to be considered in deciding whether or not to grant such an application and these are first, the length of the delay; secondly the reason for the explanation if any for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted i.e. the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; and fourthly, the degree of prejudice to the respondent if the application is granted and whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.
46.In the case of Thuita Mwangi vs. Kenya Airways Ltd [2003] eKLR, the Court explained that:
“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive.
Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”
47. The Supreme Court in the case of Nicholas Kiptoo Arap Salat v IEBC & 7 Others (2014) also set out the guiding principles for grant of leave to appeal out of time as follows:
a) Length of delay,
b) Reason for delay 48.
c) Chances of the appeal succeeding/ arguability…”
12. In applying the above principles to the circumstances of the instant application, I find the explanation offered by the applicant not only convincing but also plausible as the judgment was delivered without notice to the parties on a date way after it was slated for delivery. I also find the delay in filing the application for extension of time is not inordinate.
13. On whether the intended appeal is arguable, a review of the grounds taken in support of the intended appeal vis-à-vis the judgment of the trial court shows that the appeal is not frivolous as both the appellant and respondent claim interest in the suit property on alleged allocation of it by the relevant authorities. That being my view of the matter before me, I find and hold that the applicant has made up a case for been granted leave to file his intended appeal out of time, which leave I hereby grant it as sought.
14. Concerning the application for stay of execution pending appeal, being of the view that unless stay of execution is granted the 1st respondent may deal with the suit property in a manner that may be prejudicial to the applicant’s interest therein should it succeed in the intended appeal, I allow the application for stay on condition that the applicant shall, within 21 days of delivery of this ruling, deposit Kshs. 150,000/- in a joint interest earning account to be opened in the names of the advocates for the applicant and the 1st respondent as security for costs. In default the order for stay granted shall be deemed as vacated. Costs shall abide the outcome of the intended appeal.
15. Orders accordingly.
Ruling dated, signed and delivered virtually at Busia this 2nd day of July, 2026.
In the presence of: -
Ms. Opondo for the Applicant
Mr. Ipapu for 1st respondent
No appearance for the 2nd – 4th respondents
Court Assistant: Ajwang