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ELCPartially AllowedApplication dated 19/3/2015 arising from Milimani CMCC No. 3104 of 2014· [2020] KEELC 3852 (KLR)

Mohamed Yunis Soroya v Mohamed Yusuf Soroya Khan & another [2020] KEELC 3852 (KLR)

High Court of Kenya, Environment and Land Court
23 January 2020
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an application dated 19/3/2015 by an intended Appellant seeking leave to appeal out of time, stay of execution of a ruling by Hon. T. S. Nchoe RM delivered on 10/2/2015, and stay of proceedings in Milimani CMCC No. 3104 of 2014. The underlying suit concerned custody of title documents over land held by the Applicant and the 1st Respondent as tenants in common. The 1st Respondent had instructed Gikera and Vadgama Advocates to transfer the land to the 2nd Respondent; on discovering the power of attorney relied upon had been revoked, the firm withheld the title. The magistrate's ruling of 10/2/2015 directed the firm to surrender the title documents to the Plaintiff (1st Respondent), an order the Applicant contended was neither sought nor argued. The Respondents raised a preliminary objection that Section 79 powers could not be exercised while proceedings were pending before the magistrate's court. The court, on transfer of the file to the Environment and Land Court, held that under Section 79G of the Civil Procedure Act a nine-day delay in filing the appeal was not inordinate, the Applicant having sought review or setting aside of the order in the court below. It further found that the Applicant, a co-owner, would suffer substantial loss if the title were released to the 1st Respondent who intended to transfer the land to the 2nd Respondent. The court granted stay of execution of the surrender order and stayed the proceedings in Civil Case No. 3104 of 2014 pending the appeal. Judgment dated and delivered at Nairobi on 23 January 2020 by K. Bor J.

Key legal issues

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01

Whether the delay of nine days in filing the appeal was reasonable

Holding

Yes - the nine-day delay was not inordinate and was explained by the Applicant's attempt to have the order set aside or reviewed in the magistrate's court.

Reasoning

The appeal should have been lodged by 10/3/2015. The Applicant filed an application for stay, review and setting aside of the orders on 19/2/2015, which the magistrate declined to grant on 23/2/2015. The court found this pursuit of review in the court below constituted good and sufficient cause under Section 79G, and that a nine-day delay was not inordinate.

p. 2
02

Whether the Applicant would suffer substantial loss if stay of execution was not granted

Holding

Yes - as a tenant in common of the suit land, the Applicant would suffer loss if the title documents were released to the 1st Respondent who intends to transfer the land to the 2nd Respondent.

Reasoning

The 1st Respondent admitted holding the suit land in common with the Applicant and had prepared a transfer of the whole piece of land to the 2nd Respondent, a company in which he holds shares with his son. Release of the title would enable a transfer defeating the Applicant's interest as co-owner, satisfying the substantial-loss requirement under Order 42.

p. 2

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 under Section 79G of the Civil Procedure Act.
  • For stay of execution under Order 42, the applicant must show substantial loss, that the application was made without unreasonable delay, and may be required to furnish security.
  • A delay of nine days, explained by the applicant's pursuit of review or setting aside of the order in the court below, is not inordinate.

Court orders

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  1. 1.Leave to appeal out of time granted (application for the orders sought allowed in part)
  2. 2.Stay of execution of the order issued by the learned magistrate on 10/2/2015 requiring Gikera and Vadgama Advocates to surrender the title documents over the suit land to the 1st Respondent
  3. 3.Stay of proceedings in Milimani Civil Case No. 3104 of 2014 until the appeal is heard and determined

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 79
  • Civil Procedure RulesOrder 42
On appeal from
Resident Magistrate's Court, Milimani Law Courts
Milimani CMCC No. 3104 of 2014
Jurisdiction invoked
Sections 79G and 79 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules (leave to appeal out of time and stay of execution)

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, "Mohamed Yunis Soroya v Mohamed Yusuf Soroya Khan & another [2020] KEELC 3852 (KLR)", Case Analysis (2020). Application dated 19/3/2015 arising from Milimani CMCC No. 3104 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3852/eng@2020-01-23

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