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ELCDismissedNotice of Motion dated 24th February, 2020 (suit land LR No. KAJIADO/KITENGELA/11081)· [2020] KEELC 366 (KLR)

Josephine Wambui Githinji v Peter Gachenga Kimuhu & 2 others [2020] KEELC 366 (KLR)

Environment and Land Court
7 December 2020
2,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to extend time to appeal, stay execution, or grant an injunction, confirming only the Court of Appeal can allow late appeals.

What this practically means

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Executive summary

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The 1st Defendant, Peter Gachenga Kimuhu, moved the Environment and Land Court at Kajiado by Notice of Motion dated 24th February, 2020 seeking leave to file a Notice of Appeal out of time against the judgment of 29th January, 2020, a stay of execution of that judgment, and a temporary injunction restraining the Plaintiff and the 2nd and 3rd Defendants from interfering with LR No. Kajiado/Kitengela/11081 pending an intended appeal. He explained that his advocate inadvertently failed to lodge the Notice of Appeal before it lapsed, and relied on his claim that the Plaintiff sold the land to him in 2008 for about Kshs. 1,100,000/=, after which he transferred it to the 2nd Defendant. The Plaintiff opposed the application, contending that no plausible reason for the delay was given, that the conditions for stay under Order 42 Rule 6 and for injunction under Order 40 and Giella v Cassman Brown were unmet, and proposing security of Kshs. 12 million. The court framed three issues. On extension of time, it held that Rule 75 of the Appellate Jurisdiction Act vests jurisdiction to extend time for lodging a Notice of Appeal exclusively in the Court of Appeal, and the decisions of the Environment and Land Court relied on were persuasive only; that prayer failed. On stay, the court found the 1st Defendant had not lodged a Notice of Appeal, was not the registered owner of the land, and had not demonstrated substantial loss, since it was the 2nd Defendant in occupation. On injunction, no prima facie case was shown. The application was dismissed with costs on 7th December, 2020.

Key legal issues

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01

Whether the court can grant extension of time to lodge a Notice of Appeal

Holding

The prayer was declined because the jurisdiction to extend time for lodging a Notice of Appeal lies with the Court of Appeal, not the Environment and Land Court.

Reasoning

Rule 75(1) and (2) of the Appellate Jurisdiction Act requires a notice of appeal to be lodged within fourteen days of the decision appealed against. The 1st Defendant relied on decisions of the Environment and Land Court granting such extensions, but the court held those decisions were persuasive, not binding. Reading Rule 75, the court associated itself with the quoted decisions and concluded that only the Court of Appeal can grant leave to file a Notice of Appeal out of time; this court is devoid of that jurisdiction.

p. 2
02

Whether stay of execution of the 29th January 2020 judgment should issue pending the intended appeal

Holding

Stay was refused: the Notice of Appeal was never lodged and the applicant failed to demonstrate substantial loss or satisfy Order 42 Rule 6(2).

Reasoning

Under Order 42 Rule 6(2), stay requires substantial loss, an application made without unreasonable delay, and security. Rule 5(b) of the Appellate Jurisdiction Act applies only where a notice of appeal has been lodged. Here the 1st Defendant had not lodged the Notice of Appeal, the suit land was not registered in his name, and it was the 2nd Defendant in occupation, so no prejudice to the 1st Defendant was shown. The court relied on Butt v Rent Restriction Tribunal and the Wangalwa decision and found the threshold unmet.

p. 3
03

Whether a temporary injunction should issue pending the intended appeal

Holding

Injunction refused for failure to demonstrate a prima facie case under the Giella v Cassman Brown principles.

Reasoning

The court applied the Giella v Cassman Brown principles. Since the 1st Defendant had not lodged a Notice of Appeal, was not the registered owner of the suit land, and had failed to establish substantial loss on the stay limb, he equally failed to demonstrate a prima facie case with a probability of success to warrant injunctive relief pending the outcome of the intended appeal.

p. 3

Legal principles established

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  • An Environment and Land Court has no jurisdiction to extend time for filing a Notice of Appeal to the Court of Appeal; that jurisdiction vests exclusively in the Court of Appeal.
  • A party who has not lodged a Notice of Appeal cannot obtain a stay of execution under Rule 5(b) of the Appellate Jurisdiction Act, which requires that a notice of appeal has been lodged.
  • An applicant for stay of execution must demonstrate that execution will irreparably affect or negate the essential core of the applicant as a successful party.

Court orders

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  1. 1.The 1st Defendant's Notice of Motion application dated 24th February, 2020 is dismissed with costs.

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 7
  • Appellate Jurisdiction ActRule 75(1) & (2)
  • Appellate Jurisdiction ActRule 5(b)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 40

Cases cited (9)

  • Giella V Cassman Brown
    (1973) EA 358
  • Edward Njane Nganga & Another V Damaris Wanjiku Kamau & Another
    (2016) eKLR
  • Loise Chemutai Ngurule & Another V Winfred Leshwari Kimungen
  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi
    (1999) 2 EA 231
  • Hannah Muthii Kibindu V Stephen Njine Kibindu & Another
    (2020) eKLR
  • Amal Hauliers Limited V Abdulnasir Abukar Hassan
    (2017) eKLR
  • Antoine Ndiaye Vs African Virtual University
    (2015) eKLR
  • Wangalwa & Another Vs Agnes Maliaka Cheseto
    Bungoma HC Misc Application No. 42 of 2011
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules; section 7 of the Appellate Jurisdiction 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, "Josephine Wambui Githinji v Peter Gachenga Kimuhu & 2 others [2020] KEELC 366 (KLR)", Case Analysis (2020). Notice of Motion dated 24th February, 2020 (suit land LR No. KAJIADO/KITENGELA/11081). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/366/eng@2020-12-07

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