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ELCAllowedCivil Suit No. 122 of 2011 (Extension of Time Application dated 28th May 2019)· [2019] KEELC 289 (KLR)

Lawrence Kiruri Mwathe & another v Duncan Karanja Mukundi & another [2019] KEELC 289 (KLR)

High Court of Kenya at Thika
19 December 2019
3,241 words in judgment
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The bottom line

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A Kenyan court let defendants appeal late and blocked eviction because they were never told about the original judgment, provided they deposit Kshs. 300,000.

What this practically means

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Executive summary

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This High Court ruling at Thika determined a Notice of Motion dated 28th May 2019 by the defendants in Civil Suit No. 122 of 2011, seeking leave to appeal out of time against a judgment of 28th November 2018 which granted the respondents vacant possession, damages of Kshs. 300,000/= and cancellation of the applicants' title, and seeking that such leave operate as a stay of execution. The applicants explained that judgment was delivered on notice without their advocate being informed, that they learned of it only in February 2019, and that certified proceedings and judgment were only furnished on 10th May 2019, with no certificate of delay issued. The 1st Respondent opposed, contending the application was an abuse of process, the delay inordinate, and that the applicants failed to attend court when the judgment date was reserved. The court applied the principles in the Salat decision on extension of time and Order 42 Rule 6(2) on stay, and accepted the applicants' explanation for the delay, finding no evidence to contradict it. On substantial loss, the court found that the applicants were in possession of the suit land and would suffer loss and render their appeal nugatory if evicted pending appeal. The court balanced this against the need not to deprive a successful litigant of the fruits of judgment by requiring security of Kshs. 300,000/= within 30 days. The application was allowed entirely on that condition, with leave granted to file the appeal out of time and such leave operating as a stay of execution.

Key legal issues

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01

Whether the Applicants gave sufficient explanation for the delay in filing the appeal

Holding

The Applicants satisfactorily explained the delay: judgment was delivered on notice without their counsel's knowledge, and they were unable to obtain certified proceedings until May 2019.

Reasoning

The court found from the annexed proceedings that the parties were given a mention date on 3rd October 2018 to reserve a judgment date, but the record did not show what happened on subsequent dates. The Applicants were not in court when judgment was delivered, and letters to the Executive Officer, Thika Law Courts confirmed they sought typed proceedings from February 2019. With no evidence contradicting the Applicants' assertions, the court found the explanation satisfactory, relying on Stanley Kahoro Mwangi and Kenya Red Cross Society.

p. 3
02

Whether the Applicants would suffer substantial loss if stay of execution is not granted

Holding

The Applicants, who were in possession of the suit land, would suffer substantial loss and their appeal would be rendered nugatory if the eviction and cancellation of title orders were not stayed.

Reasoning

The subordinate court had granted the Respondents vacant possession, damages and cancellation of the Applicants' title. Since the Applicants were in possession of the suit property and the judgment would serve to evict them, the court found that execution before the appeal would render a successful appeal nugatory. The court balanced this against the principle that a successful litigant should not be deprived of the fruits of judgment, and required security of Kshs. 300,000/= to protect the Respondents.

p. 4
03

Whether the application for stay was made without unreasonable delay

Holding

There was no inordinate delay in filing the application, as the reasons for the delay were explained to the satisfaction of the court.

Reasoning

The court noted that judgment was delivered on 28th November 2018 and the application filed on 28th May 2019. The 1st Respondent contended the delay was unexplained and prejudicial, but the court accepted that the Applicants only learned of the judgment in February 2019 and could not obtain certified copies of proceedings and judgment until 10th May 2019, with the certificate of delay still outstanding. On that basis the court held the application was brought without unreasonable delay.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right, requiring the applicant to explain the delay to the satisfaction of the court.
  • A judgment delivered in the absence of a party without notification, discovered after the prescribed time, constitutes sufficient ground for extension of time.
  • The purpose of stay of execution pending appeal is to preserve the subject matter so that the appeal, if successful, is not rendered nugatory.

Court orders

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  1. 1.Leave granted to the Applicants to file their Appeal out of time against the Judgment/Decree dated 28th November 2018 in Civil Suit No. 122 of 2011
  2. 2.The Leave granted to file the Appeal out of time to operate as a Stay of Execution of the Judgment and Decree in Civil Suit No. 122 of 2011
  3. 3.The Applicants to deposit security of Kshs. 300,000/= within 30 days from the date of the order
  4. 4.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (10)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral And Boundaries Commission & 7 Others
    [2014] eKLR
  • Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited
    (2015) eKLR
  • Kenya Red Cross Society v Mbondo Katheke Mwania
    [2019] eKLR
  • Edward Njane Nganga & Another v Damaris Wanjiku Kamau & Another
    [2016] eKLR
  • Masisi Mwita v Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015, (2016) eKLR
  • Halal & Another v Thornton & Turpin Ltd
  • Hassan Guyo Wakalo v Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd v Stephen Reuben Karunditu
    Civil Application No.158 of 1994, (1994) LLR 4853
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nairobi HCC No.6726 of 1991
  • Consolidated Marine v Nampijja & Another
    Civil App.No.93 of 1989 (Nairobi)
On appeal from
Magistrates' Court (Thika Law Courts)
Civil Suit No. 122 of 2011
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time) and Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending 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, "Lawrence Kiruri Mwathe & another v Duncan Karanja Mukundi & another [2019] KEELC 289 (KLR)", Case Analysis (2019). Civil Suit No. 122 of 2011 (Extension of Time Application dated 28th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/289/eng@2019-12-19

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