Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (application dated 26 February 2020)· [2020] KEELC 1811 (KLR)

Rishard Abdulrehman Khator v Idha Marie Ahmed & 2 others [2020] KEELC 1811 (KLR)

Environment and Land Court
10 June 2020
MSMunyao Sila
1,777 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Mombasa court dismissed a landowner's stay of execution because he waited four months to file it, ruling that claiming lack of money without proof is no excuse for delay.

What this practically means

#

Executive summary

#
This ruling by Munyao Sila J of the Environment and Land Court at Mombasa determined an application dated 26 February 2020 by the 1st defendant, Idha Marie Mohamed, seeking stay of execution of a judgment delivered on 31 October 2019, under Order 42 Rule 6 of the Civil Procedure Rules, 2010. The underlying suit by the administrators of the estate of Tima and Fatuma Ali Bashir succeeded in part before Omollo J, who found the applicant a trespasser on 2/3rds of LR No. 1738/Section VI/Mainland North, ordered his eviction, directed rectification of the register to reflect only a 1/6th share, and awarded the respondents a pro rata 2/3rd share of income from the land. After judgment, the applicant obtained a 14-day interim stay to enable filing of a formal stay application, but filed it only on 5 March 2020, over four months later. The court found this to be unreasonable delay. The explanation offered — lack of funds for legal fees and unsuccessful attempts to negotiate with the respondents' counsel — was a bare, unsubstantiated assertion which the court held too low a threshold to excuse delay, concluding the applicant acted only when threatened with execution. Before reaching that issue, the court expunged the respondents' Notice to Act in Person and replying affidavit, both filed in breach of Order 9 Rule 9 without a court order or the outgoing advocate's consent, leaving M/s Stephen Macharia Kimani on record for the respondents. The application was dismissed solely on the ground of delay, with no orders as to costs since it was technically unopposed. Other grounds under Order 42 Rule 6(2) were not interrogated.

Key legal issues

#
01

Whether the four-month delay in filing the formal stay application was unreasonable

Holding

It was unreasonable and unexplained; the application was dismissed solely on that ground

Reasoning

The court had granted an interim 14-day stay after the 31 October 2019 judgment specifically to enable filing of a formal application, but the application was only lodged on 5 March 2020. The applicant's explanation — lack of funds for legal fees and failed negotiations with the respondents' counsel — was a bare assertion not substantiated by any evidence of his financial position. The court held that accepting such a blanket statement would set too low a threshold, and concluded the applicant only moved when threatened with execution.

p. 2
02

Whether the respondents' Notice to Act in Person and replying affidavit were properly on record

Holding

They were irregular and were expunged; M/s Stephen Macharia Kimani remains on record for the respondents

Reasoning

After judgment, a litigant may only replace an advocate on record or act in person upon a court order or the outgoing advocate's consent under Order 9 Rule 9. Rashid Abdulrehman Khator's Notice to Act in person and subsequent instruction of M/s Hezron Gekonde & Company Advocates were both effected without such order or consent. The replying affidavit drawn by that firm was therefore irregular and could not be considered, leaving the application effectively unopposed.

p. 2

Legal principles established

#
  • A stay application must be filed without unreasonable delay; a lapse of over four months after an interim 14-day stay requires proper explanation
  • A bare, unsubstantiated claim of lack of funds is not a valid explanation for delay in filing a stay application
  • A party cannot come on record in place of a previous advocate or act in person after judgment without a court order or the outgoing counsel's consent, per Order 9 Rule 9

Court orders

#
  1. 1.The Notice to Act in Person filed by Rashid Abdulrehman Khator and the Replying Affidavit filed by M/s Hezron Gekonde & Company Advocates are expunged from the record
  2. 2.M/s Stephen Macharia Kimani Advocate remains on record for the respondents, and only documents filed by that firm will be accepted on their behalf
  3. 3.The application dated 26 February 2020 is dismissed solely on the ground of delay
  4. 4.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6 (2)
  • Civil Procedure Rules, 2010Order 9 Rule 9
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rishard Abdulrehman Khator v Idha Marie Ahmed & 2 others [2020] KEELC 1811 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 26 February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1811/eng@2020-06-10

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