Timothy Nkonge & 3 others v John Mugambi [2019] KEELC 993 (KLR)
The bottom line
#A Kenyan land court stopped an eviction and allowed a late appeal because the family had occupied and developed the land for 38 years.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated
Eviction from suit land occupied for 38 years and developed constitutes substantial loss.
The Applicants pleaded they would suffer irreparably if evicted, having lived on and developed the land for generations spanning 38 years. The court found no dispute that the Applicants are in possession, and that enforcement of the judgment through the pending eviction application would result in their eviction, which constitutes substantial loss under Order 42 Rule 6(2)(a).
Whether the application was brought without undue delay
Delay of about two months after judgment, before which proceedings had been applied for, was not undue delay.
Judgment was delivered on 9th July 2019 and the application filed on 23rd October 2019. The Applicants explained the delay as arising from proceedings applied for on 12th July 2019 which had not been supplied. The court accepted this explanation and found the application brought without undue delay.
Whether leave to appeal out of time should be granted
Leave granted; sufficient reasons shown for not filing appeal in time under Section 79G.
The court applied Section 79G of the Civil Procedure Act and the Salat principles on extension of time. The Applicants explained in their supporting affidavit that the delay was due to lack of proceedings applied for in person on 12th July 2019 and evidenced by a receipt, which had yet to be supplied. The court found sufficient reasons and granted leave.
Security for the decree
Willingness to furnish security satisfied the third condition; security fixed at Kshs.1,500,000.
Order 42 Rule 6(2)(b) requires the applicant to give such security as the court orders for due performance of the decree. The Applicants indicated willingness to furnish security, satisfying the condition, and the court fixed the quantum at Kshs.1,500,000 within 21 days, default entailing lapse of the stay.
Legal principles established
#- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
- The discretion to extend time is unfettered and equitable, available only to a deserving party who explains the delay.
- Courts must give effect to the overriding objective and opt for the lower rather than the higher risk of injustice.
Court orders
#- 1.Stay of execution of the judgment/decree granted pending hearing and determination of the Applicants' intended Appeal
- 2.Applicants to deposit security of Kshs.1,500,000 in court within 21 days; in default the stay orders to automatically lapse
- 3.Applicant to lodge Appeal against the decree of the lower Court within 30 days
- 4.Upon filing the memorandum of Appeal, the Applicant to prepare, file and serve the record of appeal within 45 days
- 5.Costs in the cause
- On appeal from
- Nanyuki Chief Magistrate's Court
- Civil Suit No. 75 of 2013
- Jurisdiction invoked
- Sections 79G of the Civil Procedure Act, Order 50 Rule 6 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timothy Nkonge & 3 others v John Mugambi [2019] KEELC 993 (KLR)", Case Analysis (2019). Notice of Motion dated 23rd October 2019 (arising from Nanyuki Chief Magistrate's Court Civil Suit No. 75 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/993/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.