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ELCAllowedNotice of Motion dated 16th October, 2015 (ELC Appeal No. 555 of 2015 referenced)· [2020] KEELC 3701 (KLR)

Julius Kimani t/a Geomath Management & 25 others v Inkom Investment Limited [2020] KEELC 3701 (KLR)

Environment and Land Court
30 January 2020
SOS. Okong'o
2,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave 50+ families more time to appeal an eviction and stopped the eviction, because their lawyers failed to file the appeal on time.

What this practically means

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Executive summary

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The applicants were defendants in Thika Chief Magistrate's Court Civil Case No. 36 of 2011, in which the respondent, the registered proprietor of L.R No. 61/16, obtained judgment on 27th July, 2015 declaring the applicants trespassers, granting a permanent injunction, eviction or purchase at market value, and mesne profits. The applicants instructed two law firms to appeal and paid fees, and were told an appeal (ELC Appeal No. 555 of 2015) had been filed. On 30th September, 2015 they discovered that no appeal had in fact been filed and that the file number did not exist. By Notice of Motion dated 16th October, 2015 they sought extension of time to appeal under section 16A of the Environment and Land Court Act and a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. The respondent opposed, arguing inordinate delay, lack of an arguable appeal and absence of security. The court found good and sufficient cause for the delay, holding the applicants had done what was expected of prudent litigants and should not suffer for their advocates' failure. It found substantial loss would result since eviction would involve demolition of residential houses, the application was brought without unreasonable delay, and security was offered. The court extended time to 14th February, 2020, directed the appeal be filed at ELC Thika, granted a stay of execution, required a deposit of Kshs. 480,000/= as security within sixty days failing which the stay lapses, restrained the applicants from selling or constructing on the suit property pending appeal, and ordered each party to bear its own costs.

Key legal issues

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01

Extension of time to file appeal out of time

Holding

Extension granted; the applicants established good and sufficient cause because their advocates led them to believe an appeal had been filed when none had been lodged.

Reasoning

The applicants instructed two law firms to appeal and paid fees. They were made to believe the appeal was lodged, and only learnt on 30th September, 2015 - after expiry of the 30-day period under section 16A(1) of the ELC Act - that no appeal had been filed. They promptly instructed a new firm which filed the application within two weeks of discovery. The court held the delay was not inordinate and was sufficiently explained, satisfying section 16A(2).

p. 3
02

Stay of execution pending appeal

Holding

Stay granted; the conditions of substantial loss, no unreasonable delay and security were met, with security fixed at Kshs. 480,000/=.

Reasoning

The lower court had ordered eviction and many applicants resided on the suit property, so eviction would involve demolition of their houses before the appeal was heard - establishing substantial loss. The application was made without unreasonable delay and counsel expressed willingness to furnish security. All three conditions in Order 42 Rule 6(2) of the Civil Procedure Rules were therefore satisfied.

p. 3

Legal principles established

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  • An appeal may be admitted out of time where the appellant shows good and sufficient cause for the delay.
  • The mistake of an advocate in failing to file an appeal as instructed should not be visited upon an innocent litigant who acted as a prudent litigant.
  • Stay of execution pending appeal requires substantial loss, application without unreasonable delay, and security.

Court orders

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  1. 1.Extension of time to file appeal up to and including 14th February, 2020
  2. 2.The appeal to be filed at the Environment and Land Court at Thika
  3. 3.Stay of execution of the judgment and decree of 27th July, 2015 pending the hearing and determination of the intended appeal
  4. 4.Applicants jointly and severally to deposit Kshs. 480,000/= in court as security within 60 days, failing which the stay lapses automatically
  5. 5.Applicants not to sell or construct new buildings or houses on L.R No. 61/16 pending the appeal
  6. 6.Each party to bear its own costs of the application

Authorities

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Legislation

  • Environment and Land Court ActSection 16A(1)
  • Environment and Land Court ActSection 16A(2)
  • Civil Procedure RulesOrder 42 Rule 6(2)
On appeal from
Thika Chief Magistrate's Court
Civil Case No. 36 of 2011
Jurisdiction invoked
Section 16A of the Environment and Land Court Act, 2011 (appeals from subordinate courts to the ELC)

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, "Julius Kimani t/a Geomath Management & 25 others v Inkom Investment Limited [2020] KEELC 3701 (KLR)", Case Analysis (2020). Notice of Motion dated 16th October, 2015 (ELC Appeal No. 555 of 2015 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3701/eng@2020-01-30

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