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ELCAllowedApplication dated 30/7/2019 (suit filed 2013)· [2020] KEELC 3209 (KLR)

Alexander Vincent Mabonga (Suing as the legal representative of Joseph Wekesa Tulula (Deceased) v Hilda Wanjiru Tulula & another [2020] KEELC 3209 (KLR)

Environment and Land Court
10 March 2020
2,789 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a delayed land appeal and halted transfer of the land, but only on strict deadlines and a Kshs.200,000 security condition.

What this practically means

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Executive summary

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This was an application dated 30/7/2019 by the plaintiff in a 2013 land suit seeking leave to file a notice of appeal out of time and a stay of execution of the judgment delivered on 6/5/2019, which had awarded the 2nd defendant entitlement to subdivision of the land and title to the parcel he had purchased, the court having held that the plaintiff holds the land in trust for his siblings. The applicant explained the delay by asserting he had no notice of the judgment date; the court did not sit on the originally scheduled date of 12/4/2019, but the Deputy Registrar had issued notices rescheduling judgment to 6/5/2019, and counsel was deemed capable of discovering the new date from the registry or notice board. Nonetheless, the court took account of the applicant's residence in the United Kingdom and the principle that a litigant should not suffer for his advocate's mistakes, and found sufficient reasons to extend time, some 70 days after judgment. On stay, the court applied the three conditions in Order 42 Rule 6, found a real possibility that subdivision and issuance of title would render the appeal nugatory, held that the balance of convenience favoured a stay since the 2nd defendant remained in occupation and would suffer only slight delay, and granted stay conditional on security of Kshs.200,000/= deposited in a joint interest-bearing account, with automatic vacation of the stay upon default. Timelines of 7 days for the notice of appeal and 45 days for the record of appeal, running concurrently, were set. The applicant was ordered to bear the costs of the application.

Key legal issues

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01

Extension of time to file a notice of appeal

Holding

Leave granted despite unexplained counsel lapse, because the applicant was abroad and the court was inclined to overlook counsel's mistake in the interests of substantive justice.

Reasoning

The court found no good explanation, since counsel ought to have checked the registry or notice board and would have learned of the rescheduled judgment date of 6/5/2019. However, the applicant being based in the United Kingdom raised genuine communication difficulties, and mistakes of counsel should not injure a litigant's rights where substantive justice so requires. The delay of 70 days was therefore excused and leave to file the notice of appeal out of time was granted.

p. 3
02

Stay of execution pending appeal

Holding

Stay granted: substantial loss (rendering the appeal nugatory) was shown, delay already addressed, and the applicant to give security of Kshs.200,000/=.

Reasoning

The court found a real possibility that the suit land would be subdivided and title issued to the 2nd defendant, rendering any appeal nugatory and wasting resources if the appeal succeeded. The balance of convenience favoured a stay; the 2nd defendant remained in possession and would suffer only slight delay in processing his title. Security of Kshs.200,000/= in a joint interest-bearing account was imposed as a condition, with automatic vacation of the stay upon default.

p. 4

Legal principles established

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  • The Environment and Land Court has jurisdiction to extend time for filing a notice of appeal to the Court of Appeal under Section 7 of the Appellate Jurisdiction framework as construed in Edward Njane Nganga.
  • A litigant should not be made to suffer for the mistakes of his advocate where the interests of substantive justice so require.
  • The right of appeal must be balanced against the decree holder's right to enjoy the fruits of judgment.
  • Stay of execution requires: application without unreasonable delay, substantial loss, and security.

Court orders

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  1. 1.The application dated 30/7/2019 is allowed in terms of prayer (2) and (3) thereof
  2. 2.The applicant shall file and serve the Notice of Appeal within 7 days and prepare, file and serve his record of appeal within 45 days hereof, both periods running concurrently
  3. 3.The applicant shall deposit into an interest-bearing account held jointly between the plaintiff's advocate and the 2nd defendant's advocate, within 45 days of the order, the sum of Kshs.200,000/= being security for costs in the intended appeal
  4. 4.In default of the conditions set out in Orders Nos. (2) and (3) above either singly or cumulatively, the orders of stay granted shall stand automatically vacated
  5. 5.The applicant shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1, 3, 3A
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of Kenya2010 (general reference)

Cases cited (6)

  • Kenya Airports Authority & Another vs Timothy Nduvi Mutungi
    Civil Application No. NAI 165 of 2013 (UR 113/2013) (2014) eKLR
  • Edward Njane Nganga & another v Damaris Wanjiku Kamau & another
    [2016] eKLR
  • Loise Chemutai Ngurule & Another v. Winfred Leshwari Kimung'en & 2 Others
    (2015) eKLR
  • Sheikh T/A Hasa Hauliers v Highway Carriers Ltd
    [1988] eKLR
  • Kenya Railways Corporation v Quicklubes E.A. Limited
    [2015] eKLR
  • M/S Portreitz Maternity vs James Karanga Kabia
    Civil Appeal No. 63 of 1997
Jurisdiction invoked
Sections 1, 3, 3A of the Civil Procedure Act; Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules (inherent jurisdiction to extend time and grant stay pending appeal)

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, "Alexander Vincent Mabonga (Suing as the legal representative of Joseph Wekesa Tulula (Deceased) v Hilda Wanjiru Tulula & another [2020] KEELC 3209 (KLR)", Case Analysis (2020). Application dated 30/7/2019 (suit filed 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3209/eng@2020-03-10

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