REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELC PETITION NO. 2 OF 2023
VINCENT NYINGI NDERITU....................................PETITIONER
VERSUS
THE HON ATTORNEY GENERAL......................1ST RESPONDENT
THE CHIEF NYAKEO LOCATION.....................2ND RESPONDENT
THE D.O KINANGOP DIVISION.......................3RD RESPONDENT
THE OCS, HARAKA POLICE STATION.............4TH RESPONDENT
JOSEPH NDERU WANGECHE..........................5TH RESPONDENT
GRACE WAIRIMU...........................................6TH RESPONDENT
NGARUUIYA KIRIKA.......................................7TH RESPONDENT
GACHERU KANYARA......................................8TH RESPONDENT
KABURA MUTUABA.......................................9TH RESPONDENT
HANNAH WAMBUI........................................10TH RESPONDENT
NGURE MUTHINJI SAMUEL...........................11TH RESPONDENT
KARIUKI MUCHIRI........................................12TH RESPONDENT
MARIA WANJIKU MUCHAI...........................13TH RESPONDENT
RULING:
In the Application dated 8/12/2025 the 6th Respondent, Grace Wairimu prays for the extension of time to file the Notice of Appeal against the Judgment delivered on 19/2/2025. She gives her reasons for not filing the said Notice as that the 78-year old 6th Respondent has always been dissatisfied with the Decision and that the delay was occasioned by ill advise from her former Counsel. She has no knowledge and understanding of the legal procedures and fully relied upon the ill-advice from her former Counsel. She claims to have an arguable Appeal and that should the orders sought not be granted, her right of Appeal will be irreparably prejudiced. She further holds that the Petitioner would suffer no prejudice if the Application is allowed because he is the sole occupant of the suit property and that it is just and fair that the Application be allowed. Besides what is on the face of the Supporting Affidavit sworn on even date, the Applicant depones that she is the registered proprietor of L.R. No. NYANDARUA/NJABINI/57 and claims that her Title has never been challenged. She further depones that although she was aware that the trial Court delivered its Judgment on 15/2/2015 and she has been dissatisfied with the said Judgment, her previous Advocates did not inform her of her right to appeal. She further depones that her current Advocates have now advised her to appeal and that is why she is in Court seeking extension of time. She equally deponed that there is new evidence that points to the invalidity of the Petitioner’s Title to the suit property and she has been advised by her new Advocate that she can produce the new evidence before the Court of Appeal. She also says that she filed this Application promptly and without unreasonable delay.
In the Replying Affidavit of the Petitioner, Vincent Nyingi Nderitu, sworn on 9/3/2026, the Petitioner/Decree Holder depones that the Application is devoid of merit, frivolous and an afterthought which should be dismissed with costs. The delay of nearly 10 years is grossly inordinate, unexplained and inexcusable. Although she complains that the former Counsel did not advise her in good time, she has had the current counsel since 30/10/2025 when she was convicted of contempt of court. It then took her more than one month to bring this Application in Court.
This, in the words of the Petitioner, is lack of seriousness and diligence. That in the past, the Applicant has filed 2 Notices of Appeal after two Rulings, the first one on 26/10/2023 when she filed a Notice of Appeal dated 7/11/2023 and another one dated 8/12/2023 and therefore she is not ignorant of what one does after losing and one intends to file an Appeal against the Decision. She cannot therefore rely on her “ignorance of legal process”. He concludes that he would suffer prejudice should this Application be granted due to “being engaged in further protracted litigation which comes with heavy financial obligation, to invest in diligent Counsel”. The Petitioner says that although the Applicant seeks the sympathies of the Court, he is even older than her since he is 87 years old. The Application is therefore frivolous, vexatious and an abuse of the Court process and ought to be dismissed with costs.
After hearing the two parties through written submissions by their Counsel, what the Applicant herein is saying is that she had an Advocate who, after Judgment was passed, never told her that there was provision for Appeal but that the said Advocate continued representing her during the execution proceedings and even in the unfortunate contempt of Court proceedings. The Appeal is against the Judgement that was delivered on 19/2/2015 which was about 11 years old as at 8/12/2025 when this Application was filed. The Applicant does not say that she was not aware that Judgment was delivered on the abovesaid date. No. This is what she says in paragraph 3 of her Affidavit in support of the Application sworn on 8/12/2025:
“............................I am aware that the trial Court delivered its Judgment on this matter on 15th February, 2015. I have always been dissatisfied with the said Decision and I instructed my previous Advocate to challenge the Decision ...................”
In the following paragraph she depones,
“................... my previous Advocates did not inform me of my right to appeal against the said Decision …………..”
I don’t think I can buy such narrative. It is very common and almost natural to blame a previous Advocate and stack all praises on the current Advocate using such phrases such as: -
“............... I have been informed by my Advocate on record which information I believe to be true that....................”
And that: -
“.......................the sins of an Advocate should not be visited on his client………….......”
It is the high time that Courts should think twice about this often-quoted phrase. If indeed the client was misled by her previous Advocates, this is a very serious accusation that goes to the root of the professional competence of the Advocate. Then he ought to name the said Advocate in the current Application as an interested party so that the latter can clear his name. Which Advocate would want to be associated with such an accusation that would taint the professional competence and credibility of his firm.
This is a person who says that she was all along aware of the Judgement delivered on 19/2/2015. The reflex action of a person who loses a case and especially such a person as the Applicant herein who depones that
“............ I have always been dissatisfied by the said Decision and instructed my previous Advocate to challenge the Decision ......”
is to ask the Advocate what the next cause of action is. Even the very least informed will always ask,
“Is this the end? Is there no other Court higher than this one that we can go to?”
Had it been a few months or even a year, I would have excused the Applicant. An Advocate who for over a decade does not file an Appeal when properly instructed ought to have been sacked after only a few months of the said instructions.
The Applicant says that she was ill-advised by her former Counsel. What action did she take after realizing this? I have not been shown a copy of a letter from the current Advocates accusing the former of the ills occasioned to the client. She only chose to exploit the sympathies and discretion of this Court using age as an excuse.
I also agree with the Petitioner’s Advocate, Senior Counsel Elisha Ongoya, that in between the Judgment and this Application there have been several execution proceedings and some of which are Applications that were made by the previous Advocates. The file in Court shows that Osur & Associates Advocates who the Applicant exudes a lot of confidence in has been on record way back as at 27/9/2023 and I believe that this is not the first time the firm is coming on record. This information is from what is in the Court file and I believe the said firm of Advocates must have sought leave to come on record for the Applicant earlier, which is not in this file. I don’t doubt the competence of the firm of Osur & associates Advocates. But since September, 2023 no such Application for extension of time was ever made until 8/12/2025, again more than 2 years yet an Appeal should be lodged within 60 days of the Decision. Several other Advocates have also been on record for the Applicant. All these Advocates cannot be made of the same “failing material”. The only deduction to draw must be that there were no instructions from the Applicant for the filing of an Appeal and the same must have been an afterthought 11 years down the line. This is not only inordinate but also inexcusable. The Applicant says on the face of the Application that: -
“.... The Applicant has an arguable Appeal and unless this Honourable Court grants the orders sought in the Application, the 6th Respondent’s right of Appeal will be irreparably prejudiced…….”
The question I pause here is, “who is prejudicing the Applicant’s right of Appeal?”. It is not the Respondent nor the Court. Not even her own Advocates. She is the author of her own misfortune.
As to the new evidence the Applicant claims to have discovered, if this is the case, then the best cause of action to take is to file an Application for Review and not an Appeal out of time.
The Applicant also says that the Petitioner will not be prejudiced by the granting of the current Application. Besides what the Petitioner says that he would suffer such as bearing financial obligation to invest in a diligent Counsel like Mr. Ongoya, there is also the painful psychological suffering. You don’t wake a person who for 10 years has been enjoying a Judgment/Decree and tell him that you want to go back to Court because you did not agree with the Decree of this Court. Justice is a 2 – edged sword. It has two blades. It cuts on both sides and does justice for both. It could therefore be very unjust to return the Petitioner to the Court corridors which he thought was now over.
The Applicant says she is 78 years old. The Petitioner is 87 years old. Such is a person you do not want to see in Court for another 3 years when she will be 90 years old. His life was not meant to be spent in Court till death. He ought to be resting with his grandchildren at home. The agony of sitting on hard wooden benches in Court every now and then is not a bed of roses. I wish to spare the Petitioner this agony by dismissing the Application dated 8/12/2025. And for the pain the Respondent has been taken through by defending this Application, I award him the costs of the same.
Judgment read and delivered at Nyandarua this 20th Day of May 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson.
Petitioner’s Counsel: Mr. Ongoya; Senior Counsel.
6th Respondent’s Counsel: Mr. Ayieko Owino.
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