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ELCDismissedBungoma ELC Case (Civil Appeal) - Notice of Motion dated 25th June 2021 arising from Bungoma CM ELC Case No 6 of 2015· [2021] KEELC 163 (KLR)

Peter Maosa Nyang’au v National Bank of Kenya Ltd & another [2021] KEELC 163 (KLR)

Environment and Land Court of Kenya
20 December 2021
4,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Bungoma refused a landowner's late appeal and stay of execution because he offered no explanation for months of delay.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Bungoma (Olao J) on the Applicant's Notice of Motion dated 25th June 2021 seeking leave to appeal out of time against the judgment of 6th October 2020 and the ruling of 9th March 2021 in Bungoma CM ELC Case No 6 of 2015, and stay of execution of the resulting decree pending the intended appeal. In the subordinate court, the Applicant's claim concerning the sale of land parcel No 1408/18/1 at Malakisi Trading Centre was dismissed and judgment entered on the 2nd Respondent's counter-claim, including eviction, mesne profits of Kshs 560,000/= and costs of Kshs 390,005/=. An earlier application to set aside the ex-parte proceedings was dismissed on 9th March 2021. The court applied Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, and the Salat principles on extension of time. It held that the Applicant and his counsel knew of the 6th October 2020 judgment (counsel holding brief was present), yet offered no explanation at all for the failure to appeal within 30 days, and never produced a draft Memorandum of Appeal. It further held that the ruling of 9th March 2021 was consequential and could not be appealed independently of the main judgment. On stay, the Applicant failed to demonstrate substantial loss, offered no security, delayed 8 months, and the 2nd Respondent had already taken possession. The application was dismissed with costs to the 2nd Respondent on 20th December 2021.

Key legal issues

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01

Leave to appeal out of time under Section 79G of the Civil Procedure Act

Holding

Leave refused; the Applicant failed to demonstrate good and sufficient cause

Reasoning

The judgment was delivered on 6th October 2020 with the Applicant's counsel holding brief present, so the Applicant knew of it. Section 79G allows extension only on good and sufficient cause. The Applicant offered no explanation for failing to file within 30 days, made no registry enquiries, and never availed a draft Memorandum of Appeal even 8 months later. The court therefore had no evidence on which to exercise its discretion.

p. 6
02

Whether the ruling of 9th March 2021 could be appealed independently of the judgment of 6th October 2020

Holding

No; the ruling was consequential on the judgment and an appeal against it could not stand alone

Reasoning

The court held that the ruling dismissing the Applicant's application to set aside the ex-parte judgment was a consequence of the main judgment. Allowing piecemeal appeals against decisions made within a dispute already under appeal would create an untidy situation of parallel determinations. The invitation to determine the ruling appeal separately was declined.

p. 6
03

Stay of execution pending appeal under Order 42 Rule 6(1) and (2)

Holding

Refused; the Applicant failed to satisfy any of the required conditions

Reasoning

The conditions are sufficient cause, substantial loss, security, and no unreasonable delay. With no appeal, there was no sufficient cause. Mere assertion of irreparable loss without evidence of its nature or of the 2nd Respondent's inability to refund did not establish substantial loss. Possession had already been taken, there was 8 months' unexplained delay, and no security was offered.

p. 7

Legal principles established

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  • Where a final judgment has been delivered by the trial court, there can only be an appeal against the whole judgment and not parts of it; a consequential ruling cannot be appealed independently
  • Extension of time is an equitable discretionary remedy requiring good and sufficient cause, not granted as of right
  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • A court cannot stay execution of what has already occurred
  • A court cannot exercise its discretionary jurisdiction in a vacuum absent evidence supporting the exercise of discretion

Court orders

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  1. 1.The Notice of Motion dated 25th June 2021 is dismissed
  2. 2.Costs of the application to the 2nd Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 3A, 75, 78
  • Environment and Land Court ActSection 16A
  • Civil Procedure RulesOrder 42 Rule 1(3) and Rule 6(1) and (2)

Cases cited (5)

  • THE HON ATTORNEY-GENERAL .V. THE LAW SOCIETY OF KENYA & ANOTHER
    C.A Civil Application No 133 of 2011
  • QURESHI & ANOTHER .V. PATEL & OTHERS
    1964 EALR 633
  • NICHOLAS KIPTOO arap KORIR SALAT .V. 1.E.B.C & OTHERS
    2014 eKLR
  • KENYA SHELL LTD .V. BENJAMIN KIBIRU & ANOTHER
    1986 KLR 410
  • MACHIRA T/A MACHIRA & COMPANY ADVOCATES .V. EAST AFRICAN STANDARD (No 2)
    2002 KLR
On appeal from
Chief Magistrate's Court, Bungoma
Bungoma CM ELC Case No 6 of 2015
Jurisdiction invoked
Sections 3A, 75, 78 and 79G of the Civil Procedure Act; Section 16A of the Environment and Land Court Act; Order 42 Rule 1(3) and 6 of the Civil Procedure Rules

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, "Peter Maosa Nyang’au v National Bank of Kenya Ltd & another [2021] KEELC 163 (KLR)", Case Analysis (2021). Bungoma ELC Case (Civil Appeal) - Notice of Motion dated 25th June 2021 arising from Bungoma CM ELC Case No 6 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/163/eng@2021-12-20

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