REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYERI
ELC MISC. NO. E006 OF 2024
PATRICK MWANGI MUNDIA………………………………APPLICANT
VERSUS
ISAIAH WAMAI MAINA……………………………………RESPONDENT
JUDGMENT
1. The Applicant herein filed an application dated February 8, 2024, seeking the following orders:
a) Spent.
b) That this Honorable Court be pleased to issue an order staying execution pending the hearing of this matter
c) That I now request leave to file my appeal out of time.
d) That this appeal has a very high likelihood of success if heard and determined.
e) That this application is duly supported by an annexed affidavit, with such orders/grounds to be adduced during the hearing of the application.
2. The Application is supported by the Applicant's affidavit, in which he deposed that he intended to appeal the decision in ELC Civil Case No. 105 of 2018 but was unable to file the appeal on time because he was in prison; he was also unable to appear for the hearing, and judgment was entered against him in favor of the Respondent herein.
3. That the judgment had already been delivered came to light only when Counsel for the Respondent began execution proceedings against him.
4. It is his prayer that he be granted an opportunity to defend himself against the same, since it is unfair for the judgment to be entered against him on technicalities. That the Decree will cause damage to members of his family who are not parties to the allegations against him.
5. He also argues that the appeal has a very high chance of success if heard and determined.
The Respondent’s replying affidavit
6. The Respondent swore an affidavit in response to this application and deposed that the judgment in Nyeri Magistrates Court ELC Case No. 105 of 2018, the matter which the Applicant herein seeks leave to appeal, was delivered on 15th March 2019, at least 5 years before the instant application was brought by the Applicant herein.
7. He acknowledged that there were indeed parallel criminal proceedings against the Applicant in Nyeri Magistrates Court Criminal Case No. 763 of 2015, which included, among other charges, obtaining by false pretenses and defrauding the consideration for the purchase of land that he paid to him. Judgment in those proceedings was delivered on March 31, 2021.
8. That it is, however, not true that the Applicant herein only recently learned of the judgment, because he was in remand from the beginning of his arraignment in court for the criminal proceedings until the delivery of judgment, and was actually released on bond. That he, in fact, approached the Respondent several times with an offer to settle the matter, as both cases were ongoing.
9. The Respondent added that of the Kshs. 4,900,000/= that the Applicant, together with his co-defendants, had obtained from him as consideration, he had received only Kshs. 1,700,000/=, leaving a balance of Kshs. 3,200,000/= unpaid to date.
10. The Respondent further contends that the pleadings in Nyeri Magistrates Court ELC Case No. 105 of 2018, which he now seeks to appeal, were served upon him personally, and that the cause proceeded to formal proof hearing based on evidence of sufficient service. Thus, it is not true that the Applicant has recently learned of the proceedings in the said suit.
11. As advised by his counsel on record, the statutory period for filing an appeal under Section 79G of the Civil Procedure Act lapsed a long time ago, and no appeal or steps toward an appeal were taken within the prescribed period. The Applicants have approached the court after an inordinate delay of nearly five (5) years, which delay has not been explained, justified, or excused in any manner.
12. Thus, the Respondent’s position is that the delay in seeking leave to appeal is deliberate and inexcusable, amounting to an abuse of the judicial process, because the Applicants have not demonstrated sufficient cause to warrant the court's exercise of discretion in their favor, and that it is in the interest of justice that the application for leave to appeal out of time be dismissed with costs.
Analysis and determination
13. The Applicant herein seeks a stay of execution and leave to file an appeal out of time from the judgment entered against him on March 15, 2019, in Nyeri Magistrates Court, ELC Case No. 105 of 2018.
14. The Applicant failed to attach a copy of the decision, leaving the Court in the dark about exactly which decision he seeks to appeal. The Court, in a similar predicament in the case of Maiyo v Too (Civil Appeal E179 of 2024) [2024] KEHC 14286 (KLR), expressed itself as follows:
“Failure to attach the order poses several challenges since Court is not able to securitize the reasons the trial Court preferred to refer the matter to Court annexed mediation in order to issue the payers sought. I cannot begin to assess the substantial loss the Applicant is likely to suffer if the Applicant has not demonstrated the loss she will suffer if the matter proceeds to mediation.
If the Court was to make a finding on the merits or demerits of the Application it would be proceeding blindly and since Prayer No (b) seeks discretionary orders, the Court cannot exercise its discretion in a vacuum. The Applicant is literally asking the Court to make a decision on nothing.”
15. There are many conditions to be assessed in granting an order of stay, and other conditions to be assessed in granting leave to file an appeal out of time. None of these can be considered in this application because the trial court decision the Applicant seeks to challenge was not attached. It is not the Court's business to seek the trial court file on its own motion, since the case belongs to the Applicant. Wabwoto J, in the case of Kamanga v Kirara & another (Environment & Land Case 1057 of 2015) [2025] KEELC 278 (KLR) (3 February 2025) (Judgment), expressed that:
“It is always the duty of the litigants to place material in support of their case. It is not the mandate of the court to go on a fact-finding mission.”
16. Consequently, the application submitted on February 8, 2024, is hereby dismissed with costs attributable to the Applicant's failure to attach the decision intended for appeal.
Dated, signed, and delivered electronically in Nyeri on this 8th day of July, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Kinyua for the Respondent
Denis: Court Assistant
In the absence of:
The Appellant
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