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ELCDismissedKajiado PM Misc. Application (arising from Kajiado Principal Magistrate Misc. Application No. 69 of 2011; suit land KAJIADO/OLCHORO ONYORE/80)· [2019] KEELC 2122 (KLR)

Parmuat Oloihorua Kore v Philip Santamo Wuantai & 4 others [2019] KEELC 2122 (KLR)

Environment and Land Court
31 July 2019
COChristine Ochieng
2,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado refused to pause enforcement of a land judgment because the appeal notice was filed late and without required permission.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court at Kajiado by Notice of Motion dated 11th January 2019, under Order 42 Rule 6 and Order 51 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking stay of execution of the judgment of 20th November 2018, which upheld Land Dispute Tribunal findings adopted in Kajiado Principal Magistrate Misc. Application No. 69 of 2011 concerning land demarcation and sharing on KAJIADO/OLCHORO ONYORE/80. The Applicant argued the application was filed without undue delay, that the substratum of the appeal would be lost, and offered to furnish security. The Respondents opposed, contending the application was late, that no substantial loss was demonstrated, no security offered, and that the Applicant had sold portions of the suit land to third parties. The court framed a single issue: whether stay of execution of the 20th November 2018 judgment should issue. Relying on Order 42 Rule 6, Rules 75 and 82 of the Court of Appeal Rules, and following Machakos County v Kapiti Plains Estate Ltd and Peter Nyaga Muvake v Joseph Mutunga, the court held that the Notice of Appeal dated 10th December 2018 was invalid, having been filed outside 14 days without leave and with no Memorandum of Appeal filed. The Applicant was also found to have brought the application with unreasonable delay and without demonstrating substantial harm. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant was entitled to stay of execution pending appeal

Holding

The application was unmerited and dismissed

Reasoning

The court found the Notice of Appeal invalid as it was filed more than 14 days after judgment without leave, and no Memorandum of Appeal had been filed. The applicant also failed to satisfy the Order 42 Rule 6 conditions: the application was made with unreasonable delay, no substantial loss was demonstrated, and no security was offered. Without a valid appeal, the stay application was unsupported.

p. 4
02

Whether leave was required to appeal and whether it was obtained

Holding

Leave was not sought or obtained, rendering the Notice of Appeal a nullity

Reasoning

Relying on Machakos County v Kapiti Plains Estate Ltd and Peter Nyaga Muvake v Joseph Mutunga, the court held that where leave to appeal is required, its procurement is sine qua non to lodging an appeal; a Notice of Appeal filed without leave is null and void and the appellate court's jurisdiction is not properly invoked.

p. 4

Legal principles established

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  • A Notice of Appeal filed without the requisite leave of the court, where leave is required, is a nullity and cannot ground a stay of execution
  • Stay of execution requires demonstration of substantial loss, absence of unreasonable delay and provision of security under Order 42 Rule 6

Court orders

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  1. 1.Notice of Motion dated 11th January 2019 dismissed
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSection 3A
  • Court of Appeal Rules 2010Rules 75(1) and (2), 82(1), 115
  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 43

Cases cited (13)

  • Florence Hare Mkaha vs Pwani Tawakal Mini Coach & Another
    (2014) eKLR
  • Socfinac Company Limited vs Nelphat Kimotho Muturi
    (2013) eKLR, H.C. at Nairobi (Milimani) 542 of 2012
  • Kiplangat Kotut vs Rose Jebor Kipngok
    2015 eKLR
  • Ndegwa Wawire vs Sicily Warware Njira
    (2018) eKLR
  • Elena D. Korir vs Kenyatta University
    (9) Justice Nzioki wa Makau
  • In Haywood vs Cope
    (1858) 25 BEAV 140
  • Patrick Kiruja Kithinji vs Victor Mugira Marete
    (2015) eKLR
  • Parmuati Oloishuru Kore vs Eric Ntabo & Co. Advocates
    (2019) eKLR
  • Gathuri Ngari vs Allan Nyaga Gathuri Ngari
    (2019) eKLR
  • Teresia Wairimu vs Wanjiku Mwangi
    (2018) eKLR
  • Stephen Wanjohi vs Central Glass Industries Ltd
    Nairobi HCC No. 6726 of 1991
  • Machakos County v Kapiti Plains Estate Ltd & another
    [2019] eKLR
  • Peter Nyaga Muvake vs Joseph Mutunga
    Nairobi Civil Appeal No. 86 of 2015
Jurisdiction invoked
Order 42 Rule 6 and Order 51 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Parmuat Oloihorua Kore v Philip Santamo Wuantai & 4 others [2019] KEELC 2122 (KLR)", Case Analysis (2019). Kajiado PM Misc. Application (arising from Kajiado Principal Magistrate Misc. Application No. 69 of 2011; suit land KAJIADO/OLCHORO ONYORE/80). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2122/eng@2019-07-31

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