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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 4877 (KLR)

Chutha v Ndung’u (Environment & Land Case 239 of 2012) [2018] KEELC 4877 (KLR)

Environment and Land Court
12 July 2018
524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause the judgment's enforcement because the applicant couldn't show he'd suffer real loss or offer security, but allowed the late appeal.

What this practically means

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Executive summary

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The plaintiff applied for a stay of execution of the judgment of Mwangi Njoroge J dated 4/10/2017 and delivered on November 10, 2017, together with all consequential orders, pending an intended appeal. He also sought leave to file a notice of appeal out of time, explaining that he only received notice of delivery of judgment on 10/1/2018, two months after delivery, and that his advocates promptly applied for certified copies of the proceedings, judgment and decree on 11/1/2018, receiving the judgment on 15/1/2018. The application was supported by the plaintiff's affidavit and a draft memorandum of appeal. The defendant opposed the application through a replying affidavit filed on 27/2/2018, maintaining that the same notice of delivery of judgment sent to the plaintiff had been served on him, and urged dismissal with costs. The defendant relied on Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2016] eKLR, which summarises the conditions for stay of execution pending appeal: application without undue delay, demonstration of substantial loss, and offer of security. The plaintiff also objected that a different judge from the one who signed the judgment delivered it, but the court noted this is permitted under Order 21 of the Civil Procedure Rules. The court found that the plaintiff neither demonstrated substantial loss nor offered security for the performance of the decree, and accordingly declined the stay. It nevertheless granted leave to file the appeal out of time, and awarded the costs of the application to the defendant.

Key legal issues

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01

Whether a stay of execution pending appeal should be granted

Holding

Stay refused because the plaintiff failed to demonstrate substantial loss and failed to offer security for the due performance of the decree

Reasoning

The court adopted the conditions for stay set out in Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2016] eKLR: application without undue delay, demonstration of substantial loss, and offer of security. The plaintiff satisfied none of the substantive conditions: he did not show substantial loss nor offer security, so the stay could not issue notwithstanding the intended appeal.

p. 2
02

Whether the plaintiff should be granted leave to file a notice of appeal out of time

Holding

Leave granted, on the basis that the plaintiff received notice of delivery of judgment two months after judgment was delivered and promptly applied for certified copies of the proceedings

Reasoning

The plaintiff explained the delay: he received notice of delivery of judgment on 10/1/2018, two months after judgment, and his advocates promptly applied for certified copies of proceedings, judgment and decree on 11/1/2018, receiving the judgment on 15/1/2018. On this explanation the court found it fit to grant leave to appeal out of time, even while refusing the stay.

p. 2

Legal principles established

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  • The conditions for granting a stay of execution pending appeal are that the application is made without undue delay, that the applicant demonstrates he will suffer substantial loss if the order is not granted, and that the applicant offers security for the due performance of the decree
  • A judgment may lawfully be delivered by a different judge from the one who signed it under order 21 of the Civil Procedure Rules

Court orders

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  1. 1.The court declines to order stay of execution of the decree issued pursuant to the judgment delivered in this matter
  2. 2.Leave is granted to the plaintiff to file an appeal out of time
  3. 3.The defendant will have the costs of this application

Authorities

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Legislation

  • Civil Procedure RulesOrder 21

Cases cited (1)

  • Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa
    [2016] eKLR
On appeal from
Environment and Land Court
Not stated
Jurisdiction invoked
Inherent jurisdiction and Order 21 of the Civil Procedure Rules in respect of stay of execution and extension of time to appeal

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, "Chutha v Ndung’u (Environment & Land Case 239 of 2012) [2018] KEELC 4877 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4877/eng@2018-07-12

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