Lawrence Kiruri Mwathe & another v Duncan Karanja Mukundi & another [2019] KEELC 289 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicants gave sufficient explanation for the delay in filing the appeal
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.
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.
Whether the Applicants would suffer substantial loss if stay of execution is not granted
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.
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.
Whether the application for stay was made without unreasonable delay
There was no inordinate delay in filing the application, as the reasons for the delay were explained to the satisfaction of the court.
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.
Legal principles established
#- 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
#- 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.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.The Applicants to deposit security of Kshs. 300,000/= within 30 days from the date of the order
- 4.It is so ordered
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.