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ELCPartially AllowedNotice of Motion dated 17.3.2016 (Judicial Review cause, judgment dated 4.12.2015/7.12.2015)· [2016] KEELC 272 (KLR)

Evans Kaleka Sogomi v District Land Registrar, Uasin Gishu & 6 other [2016] KEELC 272 (KLR)

High Court of Kenya
26 May 2016
AOAntony Ombwayo
1,314 words in judgment
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The bottom line

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A Kenyan court fixed a wrong judgment date, allowed late filing of an appeal, and protected the disputed property for 100 days.

What this practically means

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Executive summary

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James Muasya Mutunga and other interested parties moved the High Court at Eldoret by Notice of Motion dated 17.3.2016 seeking stay of execution of the judgment and decree in a judicial review cause, extension of time to file a Notice of Appeal, and deeming of their annexed Notice of Appeal as properly filed. They argued that judgment was delivered without notice to them or their counsel, that a decree was extracted without the notice required by Order 21 Rule 8 of the Civil Procedure Rules, that they only learned of the judgment when execution commenced, and that the intended appeal would be rendered nugatory. The respondent, Evans Kaleka Sogomi, opposed the application as incompetent and an abuse of process, sought security of Kshs.10 million, and argued there was nothing to stay as the decree had been executed. The court found an error apparent on the face of the record: the judgment was actually delivered in open court on 7.12.2015 in the presence of counsel, though erroneously dated. Exercising its inherent jurisdiction, the court corrected the date. Relying on section 7 of the Appellate Jurisdiction Act, it held it had jurisdiction to extend time, found good reasons given the unrecorded notification of the interested party, extended time, and deemed the Notice of Appeal filed on 17.3.2016 as duly filed. Instead of staying execution (the decree having been executed), the court restrained further dealings in the suit property for 100 days pending the envisaged Court of Appeal determination, with liberty to apply.

Key legal issues

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01

Error apparent on the face of the record as to the judgment date

Holding

The court found the judgment was actually delivered on 7.12.2015 in open court, and exercised its inherent jurisdiction to correct the erroneous date of 4.12.2015

Reasoning

The record showed the judgment was read in open court on 7.12.2015 with counsel for the ex parte applicant and for the interested parties present, while the Attorney General did not appear. The judgment was erroneously dated. The court invoked its inherent jurisdiction to correct the date to reflect delivery, which also bore on whether the applicants had knowledge of the judgment in time to appeal.

p. 2
02

Extension of time to file Notice of Appeal

Holding

Extension of time granted; the Notice of Appeal filed on 17.3.2016 deemed duly filed

Reasoning

The court held it had jurisdiction under section 7 of the Appellate Jurisdiction Act to extend time for filing a notice of appeal. Observing that the manner in which the interested party was notified of the judgment was not recorded, the court found good reasons for the extension and exercised its discretion judiciously, guided by the Mbogo v Shah and Matiba v Moi standards on interference with judicial discretion.

p. 3
03

Stay of execution pending appeal

Holding

No stay granted as the decree had been executed; instead a time-limited preservation order over the suit property was issued

Reasoning

The respondent contended nothing remained to be stayed since the decree had been executed. Rather than granting a stay of execution, the court preserved the subject matter by restraining further dealings in the suit property for 100 days pending the envisaged appeal, with liberty to apply for further orders.

p. 3

Legal principles established

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  • The High Court has power under section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal even after the prescribed time has expired
  • Judicial discretion must be exercised judiciously and not capriciously

Court orders

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  1. 1.Correction of the error on the face of the record: the judgment to read as delivered and dated 7.12.2015 instead of 4.12.2015
  2. 2.Extension of time within which the Interested Parties may file the Notice of Appeal
  3. 3.The Notice of Appeal filed on 17.3.2016 deemed as duly filed
  4. 4.No further dealings in respect of the suit property until determination by the Court of Appeal of the envisaged appeal, for 100 days, with liberty to apply

Authorities

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Legislation

  • The Appellate Jurisdiction ActSection 7
  • Civil Procedure RulesOrder 21, Rule 8

Cases cited (2)

  • Mbogo & Another v Shah
    1968 EA 93
  • Matiba v Moi & 2 Others
    2008 1 KLR 670
Jurisdiction invoked
Section 7 of The Appellate Jurisdiction Act Cap 9 Laws of Kenya; court's inherent jurisdiction

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, "Evans Kaleka Sogomi v District Land Registrar, Uasin Gishu & 6 other [2016] KEELC 272 (KLR)", Case Analysis (2016). Notice of Motion dated 17.3.2016 (Judicial Review cause, judgment dated 4.12.2015/7.12.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/272/eng@2016-05-26

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