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ELCPartially AllowedApplication dated 10/7/2013 (arising from CMCCC No. 10029 of 2002)· [2018] KEELC 4647 (KLR)

Geneveva Atsango v Deograsis K. Opalakadi [2018] KEELC 4647 (KLR)

Environment and Land Court
6 February 2018
KBK. BOR
1,302 words in judgment
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The bottom line

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A Kenyan court allowed a late appeal to proceed but refused to pause enforcement of the judgment because the applicant offered no security.

What this practically means

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Executive summary

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By an application dated 10/7/2013, the Appellant sought leave to appeal out of time and stay of execution of a judgment of Honourable Mrs. Oganyo delivered on 7/6/2013 in CMCCC No. 10029 of 2002, a dispute between former cohabitants over Plot No. R9 purchased from Lucky Summer Estate Company Limited, on which six flats stand; the magistrate had granted the Respondent one flat. The Applicant explained the delay by claiming she was in Shinyalu nursing her sick aunt, who died on 24/6/2013 and was buried on 6/7/2013. The Respondent countered that the obituary showed the aunt died in Nairobi, that the Applicant waited some 20 days after the burial, that her advocates had a duty to notify her and seek stay, and that she had proved neither substantial loss nor security. At the hearing the Applicant's advocate added that counsel was indisposed on judgment day, an assertion the court found unsupported and not pleaded in the affidavit. Applying Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, and noting the authorities cited by the parties, the court found the explanation for delay doubtful but granted leave to appeal out of time. However, it declined stay of execution, citing failure to prove substantial loss, delay in filing and prosecuting the application over more than three years with interim stay orders repeatedly extended, and the absence of any offer of security. The Applicant was ordered to pay the costs of the application.

Key legal issues

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01

Good and sufficient cause for late filing of appeal

Holding

Leave to appeal out of time was granted notwithstanding doubts about the Applicant's explanation, which related to service of the judgment notice and the advocate's failure to seek stay

Reasoning

The court found the explanation doubtful: the Applicant was 'not certain' she was in Shinyalu, the obituary showed the aunt's body was in Nairobi, and no evidence supported the advocate-indisposition claim raised only in submissions. Nonetheless the court was inclined to grant leave, while noting the further delay of over 20 days after the burial and over three years prosecuting the application.

p. 2
02

Conditions for stay of execution under Order 42 Rule 6

Holding

Stay of execution refused because substantial loss was not proved, there was delay, and no security was furnished

Reasoning

The court applied Order 42 Rule 6, adopting the Westend Butchery position that security is mandatory. The Applicant had not shown substantial loss, had delayed both in filing the application and prosecuting it (with interim stay orders extended over years, prejudicing the Respondent's enjoyment of the fruits of judgment), and had offered no security.

p. 2

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time (Section 79G, Civil Procedure Act)
  • Extension of time is governed by the length of delay, reason for delay, chances of the appeal succeeding and degree of prejudice to the Respondent
  • Stay of execution under Order 42 Rule 6 requires substantial loss, absence of delay, and provision of security

Court orders

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  1. 1.Leave granted to the Applicant to appeal out of time
  2. 2.Stay of execution of the judgment of the Honourable Magistrate delivered on 7/6/2013 declined
  3. 3.Applicant to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Joseph Wanjohi Njau v Benson Maina Kabau Nyei
    Civil Application No. 97 of 2012
  • Westend Butchery v Arithi Highway Developers Limited & 6 Others
    Nairobi Civil Suit No. 167 of 2007
On appeal from
Chief Magistrate's Court (subordinate court)
CMCCC No. 10029 of 2002
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal); Order 42 Rule 6 of the Civil Procedure Rules (stay of execution)

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, "Geneveva Atsango v Deograsis K. Opalakadi [2018] KEELC 4647 (KLR)", Case Analysis (2018). Application dated 10/7/2013 (arising from CMCCC No. 10029 of 2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4647/eng@2018-02-06

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