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Court of AppealDismissedCivil Application No. 136 of 2016

Peter Njuguna Gachie v Alice Kemunto Ondieki & another [2019] KECA 173 (KLR)

Court of Appeal
8 November 2019
1,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal kept protective orders in place but gave the appellants just 30 days to file their delayed land appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Musinga, Gatembu Kairu and Odek, JJ.A.) on an application by Peter Njuguna Gachie, under Rules 42 and 57(2) of the Court's Rules and sections 3A and 3B of the Appellate Jurisdiction Act, seeking rescission or variation of orders of stay of proceedings and temporary injunction granted on 17th October 2014 in favour of the respondents. The underlying dispute concerns a 5-storey building the respondents erected on Nairobi Block 62/258, which the applicant claims partly encroaches on his land, Nairobi Block 62/259; the applicant had obtained a mandatory injunction compelling demolition of the encroaching part, and the respondents were restrained pending an intended appeal from the ruling of Mary M. Gitumbi, J. dated 2nd May 2014. Nearly five years later no record of appeal had been filed. The applicant argued the respondents were indolent; the respondents explained that the trial court file could not be traced despite repeated requests and payment of typing charges. The Court found the respondents' suspicion that the file was deliberately hidden to be unsubstantiated, but held that the failure to supply proceedings or give written reasons amounted to a breach of Article 47 of the Constitution on fair administrative action. Balancing the applicant's right to enjoy his decree against the respondents' constitutional right of appeal, the Court declined to vacate the orders, instead directing that the appeal be filed within thirty days, failing which the orders of 17th October 2014 would stand vacated. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders of stay of proceedings and temporary injunction granted on 17th October 2014 should be rescinded or varied on account of the respondents' failure to file the intended appeal
  2. 2.Whether the respondents have been indolent or whether the failure to file the appeal is attributable to the unavailability of the trial court's proceedings
  3. 3.How the Court should balance the applicant's right to enjoy the fruits of his judgment against the respondents' right of appeal

Key legal issues

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01

Whether interlocutory stay orders should be vacated where the intended appeal has not been filed

Holding

The Court declined to vacate the orders, instead granting a limited period of 30 days to file the appeal, with automatic vacation of the orders upon default.

Reasoning

The Court found the delay in filing the appeal was not attributable to the respondents' indolence: they had repeatedly requested certified proceedings and paid typing charges, yet the trial court file could not be traced and no explanation was given. Vacating the orders would render the respondents' constitutional right of appeal nugatory, while the applicant's interest is preserved by the conditional 30-day direction. The competing rights of the decree-holder and the appellant therefore required balancing rather than outright rescission.

p. 2
02

Fair administrative action in the supply of typed proceedings

Holding

The Deputy Registrar's failure to supply proceedings or give written reasons breached Article 47 of the Constitution.

Reasoning

The respondents had applied for certified copies of proceedings immediately after the ruling and sent reminders, but the proceedings were neither supplied nor was any written explanation offered. Article 47 guarantees expeditious, efficient, lawful, reasonable and procedurally fair administrative action, and Article 47(2) entitles a person adversely affected to written reasons; the Fair Administrative Action Act, 2015 amplifies this right. The Court expressly declined to entertain the respondents' suspicion that the file was hidden as there was no evidence supporting it.

p. 2

Legal principles established

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  • Where an applicant for stay has a decree but cannot enjoy its fruits, and the respondents have a right of appeal but cannot pursue it because proceedings have not been supplied, the Court must balance these competing rights rather than vacate the interlocutory orders outright.
  • Failure by the Deputy Registrar to supply proceedings or give written reasons for non-supply constitutes a breach of the right to fair administrative action under Article 47.

Court orders

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  1. 1.The application to rescind and/or vary the orders issued on 17th October 2014 is refused
  2. 2.The respondents are directed to file the appeal within thirty (30) days from the date of the ruling, failing which the orders issued on 17th October 2014 shall stand vacated
  3. 3.Each party to bear their own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C ELC No. 486 of 2015
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 42 and 57(2) of the Court of Appeal Rules

Relief refused

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Rescission and/or variation of the stay of proceedings and temporary injunction orders granted on 17th October 2014

The interests of justice are not best served by vacating the orders; the respondents' inability to file the appeal stems from non-supply of proceedings by the Deputy Registrar, not indolence, and a limited time is afforded to file the appeal

p. 2

Costs

Each party shall bear their own costs of this application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The court must carefully balance these competing rights.
p. 2Balancing decree-holder's right to enjoy fruits of judgment against right of appeal
It is safe to state that there has been no fair administrative action on the part of the Deputy Registrar in dealing with the request for proceedings in that the proceedings have neither been supplied nor has any written explanation for failure to do so been given.
p. 2Fair administrative action in supply of proceedings
In that regard, we hereby direct that the appeal be filed within thirty (30) days from the date hereof, failing which the orders issued by this Court on 17th October, 2014 shall stand vacated.
p. 2Final orders - conditional filing direction
Each party shall bear their own costs of this application.
p. 2Costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Njuguna Gachie v Alice Kemunto Ondieki & another [2019] KECA 173 (KLR)", Case Analysis (2019). Civil Application No. 136 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/173/eng@2019-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.