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ELCStruck OutMombasa CMCC No. 646 of 2010 (Appeal)· [2020] KEELC 849 (KLR)

Mariam Mwalimu v Ezekiel Waithaka Mulewa & another [2020] KEELC 849 (KLR)

Environment and Land Court of Kenya
8 October 2020
MSMunyao Sila
985 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out an appeal because the appellant ignored consent conditions she had agreed to, leaving the original judgment enforceable.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Mombasa (Munyao Sila, J) on whether an appeal should be struck out for non-compliance with consent orders. The appeal arose from a Mombasa Magistrate's Court judgment of 6 December 2016 (Mombasa CMCC No. 646 of 2010), in which the respondent had sued over a house purchased without land and obtained judgment against the appellant, who claimed she had bought the same house from persons later convicted of obtaining money by false pretences. The appellant filed her Memorandum of Appeal out of time (24 February 2017, outside the 30-day period) and later applied for extension of time and stay of execution when the 1st respondent taxed costs of KShs. 236,140/= and moved to execute. On 12 May 2020, by consent, the application was allowed on conditions: deposit of security of KShs. 150,000/= within 60 days in a joint interest-earning account, and filing of the record of appeal within 90 days. The appellant complied with neither: no security was deposited and the record was filed on 17 September 2020, after the 16 August 2020 deadline. The court held that a consent is binding on the parties as if it were a contract and could not be disturbed except by another consent. Since leave to appeal out of time depended on the consent conditions, the appeal was not admitted and was struck out. The Magistrate's Court judgment remains, and the 1st respondent was given liberty to execute the decree.

Key legal issues

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01

Whether the appeal admitted out of time by consent should be struck out for failure to deposit security and file the record of appeal within the agreed timelines

Holding

The appeal was struck out because the appellant failed to comply with the consent conditions; the leave to appeal out of time could not stand without compliance

Reasoning

The appeal was filed out of the 30-day prescribed period and was only admitted by consent subject to conditions: deposit of KShs. 150,000/= security within 60 days in a joint interest-earning account, and filing of the record of appeal within 90 days. Neither condition was met. A consent order binds the parties like a contract and cannot be set aside unilaterally by the court. The court therefore could not excuse the non-deposit of security, and without the consent, the appeal was not properly admitted out of time, warranting striking out.

p. 2
02

Consequence of striking out the appeal on the judgment of the trial court

Holding

The trial court's judgment remains undisturbed and the 1st respondent may execute it

Reasoning

Since the appeal was struck out and never admitted, the judgment of the Magistrate's Court delivered on 6 December 2016 remains in place. The 1st respondent, who had taxed costs of KShs. 236,140/= and moved to execute, was expressly permitted to execute the decree.

p. 2

Legal principles established

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  • A consent order is binding on the parties as if it were a contract, and the court cannot disturb it unless the parties themselves agree otherwise.
  • Where conditions attached to leave to appeal out of time are not complied with, the leave lapses and the appeal is liable to be struck out.

Court orders

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  1. 1.The appeal is struck out for non-compliance with the consent order
  2. 2.The judgment of the Magistrate's Court remains in force
  3. 3.The 1st respondent is at liberty to execute the decree
On appeal from
Mombasa Magistrate's Court
Mombasa CMCC No. 646 of 2010
Jurisdiction invoked
Statutory first appellate jurisdiction of the Environment and Land Court over appeals from the Magistrate's Court; appeal admitted out of time by consent

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mariam Mwalimu v Ezekiel Waithaka Mulewa & another [2020] KEELC 849 (KLR)", Case Analysis (2020). Mombasa CMCC No. 646 of 2010 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/849/eng@2020-10-08

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