Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2020] KEELC 223 (KLR)

Joseph Kiprepel Lotukei v Stephen Toroitich Korkou [2020] KEELC 223 (KLR)

Environment and Land Court
17 December 2020
MNMwangi Njoroge
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kitale court refused a landowner's late appeal and stay of execution because a five-month unexplained delay and no proof of loss killed the application.

What this practically means

#

Executive summary

#
The applicant, whose land suit was dismissed on 26/5/2020, brought a notice of motion dated 28/10/2020 under Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act, Orders 17 and 50 of the Civil Procedure Rules, Section 7 of the Appellate Jurisdiction Act and Rules 4 and 75 of the Court of Appeal Rules, seeking leave to file an appeal out of time, a stay of execution and costs. He attributed the delay in filing notice of appeal to lack of knowledge of the judgment date owing to the Covid-19 pandemic. The respondent opposed, asserting the application was incompetent and overtaken by events: after judgment the applicant demolished his properties, vacated the suit land, and the respondent took possession, with photographic evidence tendered. The court identified two issues: whether the conditions for stay of execution and for extension of time were met. On stay, applying Order 42 rule 6(2) and Butt v Rent Restriction Tribunal, the court found the five-month delay unreasonable and, on the unchallenged photographic evidence, no substantial loss demonstrated; no security was offered. On extension of time, applying Section 7 of the Appellate Jurisdiction Act, Rules 4 and 75 of the Court of Appeal Rules, and the guidelines in Mwangi v Kenya Airways Ltd and Stanley Kahoro Mwangi v Kanyamwi Trading Co. Ltd, the court held the applicant had not satisfied it that the discretion should be exercised in his favour. The application was dismissed with costs to the respondent on 17/12/2020.

Key legal issues

#
01

Stay of execution pending appeal

Holding

Refused - the applicant failed to show substantial loss and the application was brought after unreasonable delay

Reasoning

Order 42 rule 6(2) requires substantial loss, absence of unreasonable delay and security. The applicant's five-month delay attributed to Covid-19 was held unreasonable. His claim of extensive developments was contradicted by photographic evidence showing he demolished his property, vacated and sold the remaining portion, which he did not rebut. No security was offered.

p. 2
02

Extension of time to file notice of appeal

Holding

Refused - the applicant did not satisfy the court that the discretion should be exercised in his favour

Reasoning

Relying on Section 7 of the Appellate Jurisdiction Act, Rule 4 and Rule 75 of the Court of Appeal Rules, and the Mwangi v Kenya Airways guidelines (length of and reason for delay, arguability, prejudice, importance of time limits), the court found the five-month delay unexplained and unexcused, and the applicant filed no submissions.

p. 3

Legal principles established

#
  • An application for stay of execution must be brought without unreasonable delay, demonstrate substantial loss, and the court may order security even where none is offered
  • A court of equal status with the High Court may exercise the power under Section 7 of the Appellate Jurisdiction Act to extend time for filing a notice of appeal
  • In extension-of-time applications the court considers the period of and reason for delay, arguability of the appeal, prejudice to the respondent, and the importance of compliance with time limits

Court orders

#
  1. 1.The application dated 28th October 2020 is dismissed with costs to the respondent

Authorities

#

Legislation

  • Civil Procedure Act Cap 21Sections 1, 1A, 1B, 3, 3A
  • Civil Procedure Rules 2010Order 17, Order 50
  • Civil Procedure Rules 2010Order 42 rule 6(2)
  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRule 75, Rule 4

Cases cited (6)

  • Daniel Wambua Ndabi -vs- Peter Luka Ndutu
    [2008] eKLR
  • Butt vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Wilson vs. Church (No.2)
    12 Ch. D 454
  • Stanley Kahoro Mwangi & 2 Others vs Kanyamwi Trading Co. Ltd
    2015 eKLR
  • Edward Njane Nganga and another -vs- Damaris Wanjiku Kamau and Another
    2016 eKLR
  • Mwangi v Kenya Airways Ltd
    [2003] KLR
Jurisdiction invoked
Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21; Order 17 and 50 of the Civil Procedure Rules 2010; Section 7 of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Kiprepel Lotukei v Stephen Toroitich Korkou [2020] KEELC 223 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/223/eng@2020-12-17

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