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ELCAllowedNot stated in the judgment (ruling on consolidated applications dated 17th June 2020 and 21st July 2020)· [2020] KEELC 762 (KLR)

James Muthee & 2 others v Joseph Mburu Kimani & 5 others [2020] KEELC 762 (KLR)

Environment and Land Court
16 October 2020
1,016 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kerugoya court gave landowners extra time to appeal and blocked their eviction because no one proved they were told about the judgment.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kerugoya delivered on 16th October 2020 by E.C. Cherono, ELC Judge, on two consolidated applications by parties acting in person. The first application, dated 17th June 2020 and brought under Sections 78G and 95 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, sought leave to file an appeal out of time against the judgment of Hon. A.K. Ithuku delivered on 30th April 2020 in Chief Magistrate's Court CM ELC No. 23 of 2018, in which the respondents had succeeded. The second application, dated 21st July 2020, sought a stay of execution of that decree pending the intended appeal. The applicants contended they only learned of the judgment on 10th June 2020 upon perusing the lower court file, and that the respondents had issued an eviction notice dated 26th June 2020 giving them sixty days to vacate. The respondents, through a replying affidavit of Joseph Mburu Kimani, opposed the applications as a delaying tactic. The court found no affidavit of service proving the applicants were notified of the judgment, accepted their account, and applied the three Order 42 Rule 6(2) principles for stay. Satisfied that the applicants' customary trust claim was an overriding interest and that execution could alienate the suit land to third parties, the court allowed both applications, granted leave to appeal out of time, required the appeal to be filed within seven days, and stayed execution of the decree pending the intended appeal, with mention on 5th November 2020 for further directions.

Key legal issues

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01

Whether the applicants were notified of the judgment of 30th April 2020, justifying extension of time to appeal

Holding

In the absence of an affidavit of service, the court accepted the applicants' averment that they were not notified of the judgment

Reasoning

The trial magistrate's judgment was delivered in the absence of the parties, with an indication that notice had been given under the Chief Justice's Covid-19 directions. However, no affidavit of service was produced proving such notice. Without that proof, the court had no reason to doubt the applicants' claim that they only learned of the judgment on 10th June 2020, excusing the delay.

p. 2
02

Whether the applicants demonstrated substantial loss warranting stay of execution

Holding

The customary trust claim was an overriding interest; execution could alienate the suit land and render the intended appeal nugatory

Reasoning

The applicants had claimed a customary/resulting trust over parcel GICHUGU/SETTLEMENT/SCHEME/835 and sought sub-division into equal portions. The court found that if the land were disposed of or alienated to third parties during execution, the applicants would suffer substantial loss should the intended appeal succeed. The applicants were in possession and occupation and would not be prejudiced by the stay.

p. 2

Legal principles established

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  • An application for stay pending appeal under Order 42 Rule 6(2) must demonstrate substantial loss, that it was brought without unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.The applicants are granted leave to file an appeal out of time
  2. 2.The appeal to be filed within 7 days from the date of the ruling
  3. 3.Stay of execution of the decree in CMCC No. 23/2018 (Kerugoya) pending hearing and determination of the intended appeal
  4. 4.Mention on 5th November 2020 for further directions

Authorities

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Legislation

  • Civil Procedure ActSections 78G and 95
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(2)
On appeal from
Chief Magistrate's Court (Kerugoya)
CM ELC No. 23 of 2018
Jurisdiction invoked
Sections 78G and 95 of the Civil Procedure Act; Order 51 Rule 1 and Order 42 Rule 6(2) of the Civil Procedure Rules

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, "James Muthee & 2 others v Joseph Mburu Kimani & 5 others [2020] KEELC 762 (KLR)", Case Analysis (2020). Not stated in the judgment (ruling on consolidated applications dated 17th June 2020 and 21st July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/762/eng@2020-10-16

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