Mohamed Yunis Soroya v Mohamed Yusuf Soroya Khan & another [2020] KEELC 3852 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the delay of nine days in filing the appeal was reasonable
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.
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.
Whether the Applicant would suffer substantial loss if stay of execution was not granted
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.
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.
Legal principles established
#- 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
#- 1.Leave to appeal out of time granted (application for the orders sought allowed in part)
- 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.Stay of proceedings in Milimani Civil Case No. 3104 of 2014 until the appeal is heard and determined
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.