Athman Salim Mohammed & another v Resiato Munguti & Noongipa Munguti Sued As The Administrators Of The Estate Of Siameto Ole Munguti & 9 others [2014] KEELC 541 (KLR)
The bottom line
#A Kenyan court let late appellants file their appeal notice but refused to protect the disputed land, ruling a dismissed case supports no interim orders.
What this practically means
#Executive summary
#Key legal issues
#Leave to file notice of appeal out of time
Leave was granted; the delay was attributable to the court's failure to issue or serve a ruling notice, and the applicants moved with speed without prejudice to the Respondents.
The court found the ruling was delivered on 20th September 2013 in the absence of the parties after a reserved date of 13th September 2013, with no ruling notice issued or served on the Petitioners' counsel. Their absence was therefore understandable. The applicants acted promptly upon learning of the ruling, and the Respondents would suffer no prejudice. On those grounds the discretion under section 7 of the Appellate Jurisdiction Act was exercised in favour of enlarging time.
Stay of a ruling issued in a different cause
Refused because the order sought to be stayed was made in a succession cause separate from this suit.
The court held that a stay cannot be granted in this file in respect of an order issued in a different succession cause. The application was therefore misconceived as framed, and the objection raised in the Respondents' Grounds of Opposition was sustained on this point.
Conservatory orders pending an intended appeal
Refused because no appeal was in existence and the Petition had been dismissed, leaving nothing upon which to premise conservatory orders under Rule 32.
The court agreed with the Respondents that conservatory orders under Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 require an existing Petition. Since the Petition had been dismissed and no appeal existed at the time of the application, the court lacked a basis to issue the preservative orders sought.
Legal principles established
#- The High Court may extend time for giving notice of intention to appeal even where the time has expired, under section 7 of the Appellate Jurisdiction Act.
- Conservatory orders under Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 cannot be premised on a Petition that has been dismissed.
Court orders
#- 1.Leave granted to the Petitioner/Applicant to file a notice of appeal out of time from the ruling of the court (prayer 2 allowed)
- 2.Prayer 3 (stay of the ruling and order of Nambuye, J.) declined
- 3.Prayer 4 (conservatory orders pending intended appeal) declined
- 4.Every party to bear his own costs
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act (power to extend time for giving notice of intention to appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athman Salim Mohammed & another v Resiato Munguti & Noongipa Munguti Sued As The Administrators Of The Estate Of Siameto Ole Munguti & 9 others [2014] KEELC 541 (KLR)", Case Analysis (2014). Petitioner/Applicant's Notice of Motion dated 27th November 2013 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/541/eng@2014-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.