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ELCDismissedNotice of Motion dated 23rd June 2021 (Petition reference not stated in judgment)· [2021] KEELC 359 (KLR)

Vikash Kamalkumardevishi Shah v Abdalla Abdulraman & 3 others [2021] KEELC 359 (KLR)

Environment and Land Court
9 December 2021
LNL.L Naikuni
1,835 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 ruling of the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Motion dated 23rd June 2021 by the Petitioner/Applicant, Vikash Kamalkumar Devshi Shah, seeking an injunction restraining the 1st Respondent from interfering with L.R NO. MN/1/9779 (original No. 891/3), Greenwood Drive Nyali, pending the applicant's intended appeal against the court's judgment of 1st March 2021 dismissing his petition. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The 1st Respondent opposed, arguing the Notice of Appeal was filed out of time without leave, was irregular, and that security for costs should be ordered. Directions were given for written submissions but neither party complied, so the court proceeded without them. The court framed two issues: whether there was a competent appeal capable of supporting stay under Order 42 Rule 6, and whether the applicant had made out a case for stay. Relying on Cosmas Mutiso Muema v Kenya Road Transporters Limited and Sammy Kuria Ndung'u v Samuel Mbugua Ikumbu, the court held the Notice of Appeal, lodged on 16th March 2021, was a day beyond the 14-day limit under Rule 75(2) of the Court of Appeal Rules and was therefore irregular; only the Court of Appeal could extend time or validate it, so the High Court lacked jurisdiction to grant stay on it. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Competence of the appeal as a foundation for stay

Holding

The Notice of Appeal lodged on 16th March 2021 was a day beyond the 14-day limit under Rule 75(2) of the Court of Appeal Rules and was therefore irregular; no competent appeal existed on which stay could be anchored

Reasoning

The court reasoned that only the Court of Appeal can extend time for filing a notice of appeal out of time, and once a notice of appeal is lodged at the Court of Appeal, the High Court is ousted from dealing with its competence. The court adopted authorities of Kasango J and Ngugi J to that effect.

p. 2
02

Whether stay of execution pending appeal can issue

Holding

No. An application for stay cannot be pegged on an irregular, out-of-time Notice of Appeal; the court had no jurisdiction to determine the application

Reasoning

Order 42 Rule 6(4) requires a notice of appeal filed as stipulated by the Court of Appeal Rules. Granting stay on an irregular notice would require deciding on its competence, a matter reserved for the Court of Appeal.

p. 3
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Costs

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the application was dismissed with costs to the 1st Respondent

Reasoning

The applicant failed to fulfill the conditions in Order 42 Rule 6(2) and (6), so costs were awarded to the 1st Respondent.

p. 3

Legal principles established

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  • The High Court's jurisdiction to grant stay of execution under Order 42 Rule 6(4) exists only where the Notice of Appeal is filed within the time stipulated by the Court of Appeal Rules; an out-of-time notice can only be validated by the Court of Appeal

Court orders

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  1. 1.THAT the notice of motion application dated 23rd June, 2021 by the Petitioner/Applicant is bereft of any merit and the same is and hereby dismissed.
  2. 2.THAT the costs of the application to be borne by the Petitioner/Applicant.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6 (including 6(2), 6(4))
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A, 27(1)
  • Court of Appeal RulesRules 74, 75(2), 75(4)
  • Appellate Jurisdiction ActSection 7
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (2)

  • Cosmas Mutiso Muema – Versus - Kenya Road Transporters Limited & another
    (2014) eKLR
  • Sammy Kuria Ndung'u V Samuel Mbugua Ikumbu
    (2021) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21

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, "Vikash Kamalkumardevishi Shah v Abdalla Abdulraman & 3 others [2021] KEELC 359 (KLR)", Case Analysis (2021). Notice of Motion dated 23rd June 2021 (Petition reference not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/359/eng@2021-12-09

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