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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 103 (KLR)

Stephen K.A.Sang & 2 others v Chebii Boiyo & 2 others [2020] KEELC 103 (KLR)

High Court of Kenya
3 December 2020
3,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Eldoret gave a delayed appellant extra time because of COVID-19, but only protected him from execution if he deposited Kshs. 200,000.

What this practically means

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Executive summary

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This ruling by M. A. Odeny J at Eldoret determines an application dated 20th May 2020 by the 3rd plaintiff, Simon David Korir, seeking leave to appeal out of time against a judgment delivered on 23rd April 2020, and a stay of execution of that judgment pending appeal. The applicant attributed the delay in filing a notice of appeal within the 14-day period under Rule 75 of the Court of Appeal Rules to the COVID-19 pandemic, the closure of courts and the operational difficulties of the shift to virtual hearings. Counsel relied on section 7 of the Appellate Jurisdiction Act and sections 3A and 95 of the Civil Procedure Act, and on the extension-of-time principles in the Salat case. The respondents opposed through grounds of opposition and a replying affidavit, contending there was inordinate delay, that leave should be sought in the Court of Appeal, and that the applicant, not being in occupation of the suit land, would suffer no substantial loss. The court found the application was filed on 26th May 2020, a one-week delay beyond the 7th May 2020 deadline, and held that the extraordinary circumstances of the COVID-19 pandemic and the difficulty of notifying unrepresented litigants adequately explained the delay, granting the applicant 14 days to file a notice of appeal out of time. On stay, the court found that although the application was brought without undue delay and security was offered, substantial loss was not established since there was no evidence of the applicant's occupation of the land. Balancing the respondent's entitlement to the fruits of judgment with the applicant's right of appeal, the court granted a stay of execution conditional on the applicant depositing Kshs. 200,000 in a joint interest-earning account within 30 days, failing which the order lapses. No express costs order was made.

Key legal issues

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01

Leave to file notice of appeal out of time

Holding

Extension of time granted; the one-week delay was explained by the COVID-19 pandemic, the shift to virtual proceedings and the difficulty of reaching unrepresented litigants

Reasoning

The court exercised its discretion under section 7 of the Appellate Jurisdiction Act and section 3A of the Civil Procedure Act. The judgment was delivered on 23rd April 2020, the 14-day period lapsed on 7th May 2020, and the application was filed on 26th May 2020. Taking judicial notice of the pandemic and the teething challenges of online hearings, and in furtherance of access to justice, the court found the delay adequately explained.

p. 4
02

Stay of execution pending appeal

Holding

Stay granted but conditionally, because substantial loss was not demonstrated; security of Kshs. 200,000 imposed

Reasoning

Under Order 42 rule 6(2) of the Civil Procedure Rules the applicant had to show substantial loss, that the application was made without unreasonable delay, and offer security. Delay was not an issue, and security was offered, but there was no evidence the applicant occupied the suit land or that he would suffer the substantial loss he alleged. Balancing the respondent's entitlement to the fruits of judgment with the applicant's right of appeal, the court conditioned the stay on a deposit of Kshs. 200,000 within 30 days.

p. 5

Legal principles established

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  • Extraordinary circumstances such as the COVID-19 pandemic and the associated operational difficulties of courts constitute a reasonable explanation for delay in filing a notice of appeal, justifying extension of time
  • An applicant for stay of execution must establish substantial loss; failure to prove occupation or the loss contemplated means the threshold is only partially met

Court orders

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  1. 1.The applicant is granted 14 days to file a notice of appeal out of time
  2. 2.Stay of execution of the judgment dated 23rd April 2020 granted on condition that the applicant deposits Kshs. 200,000 in a joint interest-earning account in the names of the advocates for the 1st defendant and the 3rd plaintiff within 30 days, failing which the order lapses

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 3A
  • Court of Appeal RulesRule 75 and Rule 75(2)
  • Court of Appeal RulesRules 4 and 39
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (13)

  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others
    SC Application No. 16 of 2014
  • Big Road Enterprises v. DHL Global Forwarding (K) Ltd
    [2017] eKLR
  • Maree Ahmed & anor v. Leli Chaka Ndoro
    [2017] eKLR
  • Selestica Limited v Gold Rock Development Ltd
    [2015]
  • James Wangalwa & anor v. Agnes Naliaka Cheseto
    (2012) eKLR
  • Silverstein Vs. Chesoni
    [2002] 1 KLR 867
  • Mukuma Vs. Abuoga
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014]
  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997
  • Winfred Nyawira Maina v Peterson Onyiego Gichana
    [2015] eKLR
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Sewankambo Dickson Vs. Ziwa Abby
    HCT-00-CC MA 0178 of 2005
  • Reliance Bank vs Norlake Investments Ltd
    (2002) 1 EA 227
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act; sections 3A and 95 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, "Stephen K.A.Sang & 2 others v Chebii Boiyo & 2 others [2020] KEELC 103 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/103/eng@2020-12-03

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