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ELCAllowedMiscellaneous Application (arising from Tigania CM ELC No. 192 of 2014)· [2020] KEELC 1716 (KLR)

Kinyua Thuranira v Moses M.G. Minyori [2020] KEELC 1716 (KLR)

Environment and Land Court
14 July 2020
1,289 words in judgment
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The bottom line

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The Land Court in Meru gave a landowner one more chance to appeal late, but only if he paid KShs. 2 million security and appealed within 14 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Hon. Lucy N. Mbugua, ELC J) determined two consolidated miscellaneous applications by a prospective appellant. The first, dated 22.3.2020, sought leave to appeal out of time against the judgment of Hon. Sogomo delivered on 28.11.2019 in Tigania CM ELC 192 of 2014, the applicant contending that he applied promptly for proceedings but did not receive them in time. The second, dated 27.5.2020, sought a stay of execution of that judgment, alleging the respondent was about to execute and evict him. The respondent opposed both, arguing the applicant had shown no effort to obtain the proceedings, that the applications were triggered only by the prospect of execution, and that they were a delaying tactic; he suggested security of KShs. 2 million. Applying Section 79G and the Supreme Court's Salat principles, the court observed that extension of time is not a right and that the applicant had not demonstrated efforts to obtain the proceedings; the trial judgment also revealed the applicant's father had litigated and lost in Case 485 of 1997. On stay, the court applied Order 42 rule 6(2) and Ringera J's Global Tours & Travels dictum, noting the absence of security. The court allowed both applications conditionally: leave to file and serve the memorandum of appeal within 14 days; stay of execution for one year only; deposit of KShs. 2 million as security within 30 days; lapse of orders on non-compliance; costs of both applications to the applicant; and the miscellaneous file marked as closed. The ruling was delivered electronically under COVID-19 practice directions.

Key legal issues

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01

Leave to appeal out of time under Section 79G

Holding

Leave granted, but conditional, given the applicant's failure to demonstrate efforts to obtain proceedings and prior adverse litigation by his father

Reasoning

Section 79G requires appeals from subordinate courts to be filed within 30 days unless the applicant shows good and sufficient cause. The Salat principles apply: extension is equitable, discretionary and case-specific. The applicant did not demonstrate efforts made to obtain the proceedings, and the trial judgment revealed prior litigation by the applicant's father in Case 485 of 1997, in which he lost. These considerations were factored into the conditional grant.

p. 2
02

Stay of execution pending appeal under Order 42 rule 6(2)

Holding

Stay granted for one year only, conditional on deposit of KShs. 2 million security within 30 days

Reasoning

The court applied the three criteria in Order 42 rule 6(2): substantial loss, application without unreasonable delay, and security. Balancing the parties' interests, the court noted the applicant had offered no security as stipulated, and the prior litigation history, and granted a time-limited stay with security and lapsing conditions.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant must demonstrate good and sufficient cause for the delay
  • Stay of execution pending appeal is discretionary and requires satisfaction of the conditions of substantial loss, no unreasonable delay and security under Order 42 rule 6(2)

Court orders

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  1. 1.The applicant is granted leave to file and serve the memorandum of appeal within 14 days from the date of delivery of the ruling
  2. 2.Stay of execution of the judgment in Tigania CM-ELC No. 192 of 2014 for a period of ONE YEAR only
  3. 3.Applicant to deposit KShs. 2 million in court as security within 30 days
  4. 4.In the event of non-compliance with orders in clauses 1 and 3, the orders granted shall lapse
  5. 5.Applicant to bear the costs of the two applications
  6. 6.The Miscellaneous file is marked as CLOSED
On appeal from
Tigania Principal Magistrate's Court (subordinate court)
Tigania CM ELC 192 of 2014
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules (inherent discretion of the High Court/ELC over appeals from subordinate courts)

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, "Kinyua Thuranira v Moses M.G. Minyori [2020] KEELC 1716 (KLR)", Case Analysis (2020). Miscellaneous Application (arising from Tigania CM ELC No. 192 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1716/eng@2020-07-14

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