Kenya Power & Lighting Company Limited v Gimalu Health Estate Limited [2020] KEELC 639 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a delayed appeal to proceed, but only after the appellant agreed to pay Kshs. 3.85 million upfront to secure a stay of execution.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain an application for extension of time and stay in the High Court/ELC
The Court held it was clothed with requisite jurisdiction under Section 95 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act to extend time notwithstanding expiry of the period.
The Respondent argued the Court lacked jurisdiction because appellate jurisdiction over High Court decisions vests in the Court of Appeal. The Court noted jurisdiction is everything, then invoked Section 95 of the Civil Procedure Act permitting enlargement of expired periods and Section 7 of the Appellate Jurisdiction Act permitting the High Court to extend time for giving notice of intention to appeal, and concluded the jurisdiction existed.
Whether the Replying Affidavit should be struck out over the Commissioner for Oaths stamp
The affidavit was properly before the Court; the Applicant bore the burden of proving the defect and adduced no evidence that the affidavit was not sworn before a qualified Commissioner for Oaths.
The Applicant relied on CMC Motors Group Ltd v Bengeria Arap Korir, arguing the stamp indicated '& Associates Advocates'. The Court held the question was whether Paul Ndungu was a Commissioner for Oaths and whether the deponent swore before him, and that the Applicant had not alleged or proved otherwise. Pleadings should only be struck out if hopeless; this one was salvageable.
Whether to extend time to file the Notice of Appeal
Extension granted: judgment was delivered in the absence of the parties, the Applicant only learnt of it on 16th March 2020, and court operations were scaled down due to Covid-19, making the delay excusable and no prejudice demonstrated by the Respondent.
Applying the Salat principles on extension of time, the Court took judicial notice that litigants usually rely on counsel for mention and judgment dates, that the judgment was delivered in the absence of both parties, and that court operations had been scaled down during the Covid-19 pandemic. The Respondent had not demonstrated prejudice. The application for extension was also made to preserve the right of appeal.
Whether stay of execution pending appeal should issue
Stay granted conditionally: the Applicant pays the decretal sum of Kshs.3,852,000/= forthwith and deposits the interest in a joint interest-earning account.
Applying Order 42 Rule 6(2) and the decided cases, the Court found the Applicant had not conclusively shown substantial loss, but the Applicant could not be expected to know the Respondent's finances, shifting the evidential burden. Balancing a money decree with that uncertainty, the Court reasoned that since the interest can be calculated, the logical condition was depositing the interest in a joint account while the principal is paid out.
Legal principles established
#- Extension of time is an equitable remedy available at the court's discretion to a deserving party, who bears the burden of laying a basis for it.
- Substantial loss is the cornerstone for granting a stay of execution; a mere assertion that a large sum is involved or that the respondent cannot refund is insufficient.
- Where an applicant reasonably fears the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to disclose its resources.
- The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal, if successful, is not rendered nugatory.
Court orders
#- 1.Leave granted to the Law Firm of M/s Muga Associates to act for the Applicant in place of Mwaure & Mwaure Waihiga Advocates
- 2.Extension of time granted for filing the Notice of Appeal, and the Notice of Appeal dated 20th April 2020 deemed duly filed upon payment of the requisite fee
- 3.Stay of execution granted on condition that the Plaintiff/Applicant pays the Defendant/Respondent Kshs.3,852,000/= forthwith
- 4.The Plaintiff/Applicant to deposit in a joint interest-earning account the interest awarded from 2002 to the date of the Ruling
- 5.Costs of the Application to be in the cause
- On appeal from
- Environment and Land Court, Machakos
- Not stated in the judgment
- Jurisdiction invoked
- Section 95 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act; Order 42 Rule 6(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Limited v Gimalu Health Estate Limited [2020] KEELC 639 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/639/eng@2020-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.