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ELCAllowedNot stated in judgment· [2018] KEELC 457 (KLR)

Edith Wangari Wanduna v Joseph Munyua Mukiri & another [2018] KEELC 457 (KLR)

Environment and Land Court
18 December 2018
LWL N Waithaka
741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a ruling of 5th April 2018, the court had granted the appellants a stay of execution of a decree issued on 5th October 2016, conditional upon depositing Kshs. 300,000 in an interest-bearing account in the joint names of the parties' advocates within 40 days, and filing an undertaking to prosecute the appeal. The appellants, peasant farmers aged 68 and 70 without independent income, were unable to raise the amount in time. By notice of motion dated 28th July 2018 they sought enlargement of time, showing they had since deposited the amount with their advocate and had written to the respondent's advocate requesting extension, but the respondent's advocate refused to cooperate citing lapse of time. The respondent opposed, claiming she would suffer prejudice. The court, sitting at Nyeri, identified the sole issue as whether the applicants had made a case for the orders sought. Relying on Order 50 Rule 6 of the Civil Procedure Rules, which permits enlargement of limited time even after its expiry on such terms as the justice of the case requires, and noting the money had since been deposited and that refusal would render the appeal nugatory, the judge granted the orders. Time was extended by a further 14 days; costs of the application were to abide the appeal, which was directed to be heard and determined within one year failing which it would stand automatically dismissed with costs to the respondent.

Key legal issues

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01

Whether enlargement of time should be granted for compliance with a conditional stay-of-execution order

Holding

Extension granted because the order had since been complied with and refusal would render the appeal nugatory.

Reasoning

The court exercised its discretion under Order 50 Rule 6, considering the applicants' explanation: their advanced age (68 and 70 years) and lack of independent income prevented timely compliance; the decretal amount had since been deposited with their advocate; and the respondent's advocate refused to cooperate in opening the joint account citing lapse of time. Balancing these factors and the risk of execution rendering the appeal nugatory, the court found the justice of the case favoured extension, though limited to 14 days.

p. 2

Legal principles established

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  • The court has discretion under Order 50 Rule 6 of the Civil Procedure Rules to enlarge time even after expiry of the appointed time, upon such terms as the justice of the case may require.

Court orders

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  1. 1.Time to comply with the conditional order (deposit of Kshs. 300,000) extended for a further 14 days
  2. 2.Costs of the application to abide the outcome of the appeal
  3. 3.Appeal to be heard and determined within 1 year failing which it shall stand automatically dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 Rule 6
Jurisdiction invoked
Order 50 Rule 6 of the Civil Procedure Rules

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, "Edith Wangari Wanduna v Joseph Munyua Mukiri & another [2018] KEELC 457 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/457/eng@2018-12-18

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