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ELCDismissedNot stated in the extract (Mombasa Environment and Land Court suit)· [2020] KEELC 744 (KLR)

Hamisi Mohamed Bakari & 5 others v Thomas Sadiki & 3 others [2020] KEELC 744 (KLR)

Environment and Land Court of Kenya
22 October 2020
CYC.K. Yano
1,895 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to stop enforcement of a land judgment, ruling only the Court of Appeal can extend appeal deadlines and unexplained delay kills stay applications.

What this practically means

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Executive summary

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Two interlocutory applications arose from a judgment and decree of the Environment and Land Court at Mombasa delivered on 5th February 2020. The 1st and 2nd defendants sought leave to file a notice of appeal out of time and a stay of execution pending an intended appeal to the Court of Appeal; the 3rd defendant, Kiboko Ndurya, separately sought stay of execution, contending the suit property was his home of 40 years and that eviction would render him and his family homeless. The plaintiffs opposed, arguing inordinate delay and the absence of any arguable appeal. The court framed two issues: whether leave to file a notice of appeal out of time could be granted, and whether stay of execution should issue. On the first, the court held it had no jurisdiction: Sections 79G and 95 of the Civil Procedure Act govern appeals from subordinate courts, while extension of time for a notice of appeal to the Court of Appeal lies under Rule 4 of the Court of Appeal Rules before that court itself. On stay, applying Order 42 Rule 6 and the Kenya Shell and Charles Wahome Gethi authorities, the court found the applications filed after over four months without any explanation for the delay, and no substantial loss demonstrated since the land could be recovered if the appeals succeeded. Both applications were dismissed with costs to the plaintiffs.

Key legal issues

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01

Jurisdiction to extend time for filing notice of appeal to the Court of Appeal

Holding

The ELC has no jurisdiction to grant leave to file a notice of appeal out of time to the Court of Appeal; Sections 79G and 95 CPA apply to appeals from subordinate courts, and Rule 4 of the Court of Appeal Rules vests the discretion in the Court of Appeal itself

Reasoning

Section 79G and Section 95 of the Civil Procedure Act relate to appeals from subordinate courts to the High Court/ELC, not appeals from the ELC to the Court of Appeal. The court's jurisdiction is derived only from express constitutional and statutory provisions. Granting the extension would usurp the Court of Appeal's powers under Rule 4 of the Court of Appeal Rules.

p. 2
02

Whether stay of execution pending appeal should be granted under Order 42 Rule 6

Holding

Stay refused: the applications were filed after over four months with no explanation for that delay, and the applicants failed to demonstrate substantial loss or that the appeals would be rendered nugatory

Reasoning

Order 42 Rule 6 requires that the application be made without undue delay, that substantial loss be shown, and that security be given. The delay of over four months in filing the stay applications was unexplained and inordinate. Relying on Kenya Shell Ltd and Charles Wahome Gethi, the court found no evidence that the suit land would be disposed of, so possession could be recovered and no substantial loss shown.

p. 2

Legal principles established

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  • A superior court hearing an original suit has no jurisdiction to extend time for filing a notice of appeal to the Court of Appeal; that discretion belongs to the Court of Appeal under Rule 4 of the Court of Appeal Rules
  • An application for stay of execution must be made without undue delay and the applicant must explain any delay in filing the application itself
  • Substantial loss is the cornerstone for granting stay; where land is the subject matter and there is no claim it will be disposed of, an appeal is not rendered nugatory because possession can be recovered

Court orders

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  1. 1.Dismissal of the 1st and 2nd defendants' application dated 15th June 2020
  2. 2.Dismissal of the 3rd defendant's application dated 14th July 2020
  3. 3.Costs of both applications awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Court of Appeal RulesRule 4
  • Appellate Jurisdiction ActNot specified

Cases cited (2)

  • Kenya Shell Limited –v- Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 108
  • Charles Wahome Gethi –v- Angela Wairimu Gethi
    (2008) eKLR
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules (stay of execution); Section 79G and 95 of the Civil Procedure Act considered and held inapplicable to appeals from this court

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, "Hamisi Mohamed Bakari & 5 others v Thomas Sadiki & 3 others [2020] KEELC 744 (KLR)", Case Analysis (2020). Not stated in the extract (Mombasa Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/744/eng@2020-10-22

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