Royford Riungu Kuura & 2 others v M’kuura M’riria & 2 others [2019] KEELC 1331 (KLR)
The bottom line
#Kenya's High Court refused a landowner's bid to overturn an eviction judgment, ruling that filing a Notice of Appeal and a 15-month delay blocked review.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to stay of execution under Order 42 Rule 6
Stay was refused. The applicant filed the application one year and two months after judgment without explanation, did not demonstrate substantial loss with specifics, offered no security, and importantly an appeal already existed by dint of the Notice of Appeal, removing the premised basis for review-based relief.
The court found the application filed nearly one year and three months after judgment with no satisfactory explanation for the delay. The applicant had not shown specific pecuniary or tangible substantial loss nor offered security. Further, since a Notice of Appeal was filed on 26th March 2018 within the fourteen-day window, an appeal existed and was not shown to have been withdrawn, and grievances about evidence were matters for appeal rather than review.
Availability of review under Section 80 CPA and Order 45 CPR where an appeal has been preferred
Review under Section 80(a) is unavailable where an appeal has been preferred; the filing of a Notice of Appeal within time constitutes preferring an appeal, and no evidence of withdrawal was tendered.
The court reasoned that the Notice of Appeal filed on 26th March 2018, seven days after judgment and within the fourteen days prescribed by Rule 75(2) of the Court of Appeal Rules, meant an appeal existed from that day. Since no evidence showed the appeal was withdrawn, the applicant could not invoke Section 80(a), which applies only where no appeal has been preferred.
Whether a mistake or error apparent on the face of the record existed
No error apparent on the face of the record was demonstrated; the complaints concerned evidence adduced or not adduced at the hearing, which are matters for appeal, not review.
The court held that the applicant's grievances about the plaintiffs' documents, witness statements and alleged inconsistencies relate to the evidence and its evaluation. It also found the applicant was represented and cross-examined the plaintiff, and that blaming advocates is no excuse for a litigant's lack of diligence in following up their case. No new matter discoverable by due diligence was demonstrated.
Legal principles established
#- Blaming former advocates is never a good excuse for a litigant's own lack of diligence in following up their case
- An appeal to the Court of Appeal is deemed filed once a Notice of Appeal is given, and its existence bars reliance on Section 80(a) of the Civil Procedure Act for review
- Inordinate and unexplained delay defeats an application for review or stay
Court orders
#- 1.The grant of prayer 2 allowing the law firm of M/s Thuranira Atheru & Co. Advocates to come on record for the 1st defendant in place of M/s Kiautha Arithi & Co. Advocates is confirmed
- 2.Prayer 3 for stay of execution of the decree/judgment and all consequential orders is denied and dismissed
- 3.Costs awarded to the plaintiffs
- Jurisdiction invoked
- Sections 80, 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rule 9 and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Royford Riungu Kuura & 2 others v M’kuura M’riria & 2 others [2019] KEELC 1331 (KLR)", Case Analysis (2019). Not stated in the ruling (ruling on Notice of Motion dated 05.07.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1331/eng@2019-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.