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ELCDismissedNotice of Motion dated 11/11/2019 (arising from suit over LOC 2/GACHARAGE/1129)· [2020] KEELC 2841 (KLR)

Elijah Njuguna Njoki v Elijah Muiruri Njuguna & 4 Others [2020] KEELC 2841 (KLR)

Environment and Land Court
7 May 2020
JKJ.G. KEMEI
2,732 words in judgment
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The bottom line

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A Kenyan court refused to halt execution of a judgment because the applicant filed their notice of appeal late, meaning no valid appeal existed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (J.G. Kemei, J) determined a Notice of Motion dated 11/11/2019 by the Plaintiff/Applicant seeking stay of execution and maintenance of status quo over suit land LOC 2/GACHARAGE/1129 pending an intended appeal against the judgment of Hon. J.G. Kemei delivered on 2nd May 2019, which had favoured the 1st and 2nd Defendants/Respondents on the subdivision of the land. The Applicant argued that the appeal would be rendered nugatory if subdivision and taxation of costs (Kshs 535,155/-) proceeded, cited his willingness to furnish security, and blamed prior counsel for the failure to file a notice of appeal in time. The Respondents opposed, contending the notice of appeal was filed out of time and therefore defective, that no legally recognised appeal existed, that the Court could not grant status quo orders, that execution had not commenced, and that the six-and-a-half-month delay was inordinate. Relying on Order 42 rule 6 of the Civil Procedure Rules and the established criteria for stay, the Court held that since the notice of appeal had been filed out of time and an application for extension of time was pending in the Court of Appeal, there was no appeal pending on which stay could be anchored; the procedure for instituting an appeal had not been complied with, defeating the injunctive/status quo prayer. Substantial loss was not demonstrated, though the delay was excused and security adequately offered. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Existence of a pending appeal as a jurisdictional prerequisite for stay

Holding

No valid notice of appeal on record since it was filed out of time; hence no appeal pending and no basis for stay

Reasoning

Order 42 rule 6(4) deems an appeal filed only when notice of appeal has been given under the Court of Appeal Rules. The Applicant admitted the notice was filed late and is seeking extension of time in the Court of Appeal. Until that is granted, no appeal exists to anchor a stay application.

p. 3
02

Substantial loss

Holding

Not demonstrated; execution had not commenced and no evidence of subdivision of the suit land

Reasoning

The Court found the Applicant did not sufficiently explain the substantial loss; the Respondents confirmed execution had not commenced beyond taxation of the bill of costs, and there was no evidence the land had been subdivided.

p. 3
03

Delay

Holding

Six-month delay, though long, excused on the ground of blame attributable to previous counsel

Reasoning

The Court accepted that the Applicant's previous advocates mistakenly failed to file the notice of appeal in time and that mistakes of counsel should not be visited on the client, so the delay was not inordinate.

p. 3
04

Security

Holding

Offer of security (deposit or surrender of title) adequately canvassed but moot as other conditions failed

Reasoning

The Applicant offered to deposit funds in an interest-earning account or surrender the title, satisfying the security consideration, but since the other conditions were not met the Court saw no need to determine it.

p. 4

Legal principles established

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  • An appeal is deemed filed only when a valid notice of appeal has been given; where the notice was filed out of time, no appeal is pending and no stay can issue

Court orders

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  1. 1.The application (Notice of Motion dated 11/11/2019) is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1),(2),(4),(5),(6)
  • Civil Procedure RulesOrder 42 rule 2(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Rules of the Court of Appealrule 75(2)

Cases cited (6)

  • Butt vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Elena D. Korir vs Kenyatta University
    {2012} eKLR
  • Halal & another vs Thornton & Turpin Ltd
    {1993} KLR 365
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Equity Bank Ltd vs Taiga Adams Company Ltd
    {2012} eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 3 others
    Civil Appeal No. 291 of 1997
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Elijah Njuguna Njoki v Elijah Muiruri Njuguna & 4 Others [2020] KEELC 2841 (KLR)", Case Analysis (2020). Notice of Motion dated 11/11/2019 (arising from suit over LOC 2/GACHARAGE/1129). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2841/eng@2020-05-07

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