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ELCPartially AllowedMiscellaneous Application dated 12th November, 2020 (arising from MELC No. 141 of 2010, Makindu Law Courts)· [2021] KEELC 695 (KLR)

Nzei Maweu v Christine Katoto Masila [2021] KEELC 695 (KLR)

High Court of Kenya
10 November 2021
2,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court let a late appeal proceed due to counsel's illness and Covid, but refused to halt execution because the applicant couldn't prove what she stood to lose.

What this practically means

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Executive summary

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This was a miscellaneous application dated 12th November 2020 in which Christine Katoto Masila sought leave to appeal out of time against a judgment delivered on 17th May 2019 by Hon Zachariah Joseph Nyakundi (Senior Principal Magistrate) in Makindu MELC No. 141 of 2010, together with a stay of that judgment and any resultant decree or proceedings. The respondent Nzeli Maweu opposed the application as defective and an abuse of process, contending that the applicant had already complied with the decree through payments and instalments. The court framed two issues: whether the applicant met the principles for leave to appeal out of time under Section 79G of the Civil Procedure Act, and whether she met the principles for stay under Order 42 Rule 6 of the Civil Procedure Rules. Applying First American Bank of Kenya Ltd v Gulab P Shah, the court found that although the delay from June 2019 to November 2020 was inordinate, the applicant gave reasonable and plausible reasons - her counsel's partial stroke and the Covid pandemic - and that a mistake of counsel cannot be visited upon the litigant. Leave to appeal was therefore granted, with the appeal to be filed and served within 14 days. However, on stay, the applicant failed to prove substantial loss: she neither attached the decree nor disclosed the decretal amount, and the respondent deponed she had partly complied. Stay of execution was declined. The applicant was ordered to meet the costs of the application.

Key legal issues

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01

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

Holding

Leave granted despite inordinate delay because the applicant gave reasonable and plausible reasons - her counsel's illness and the Covid pandemic.

Reasoning

The court applied the factors in First American Bank of Kenya Ltd v Gulab P Shah: explanation for delay, arguability of the appeal, and prejudice to the respondent. Judgment was delivered on 17 May 2019 and the appeal ought to have been filed by 18 June 2019. Proceedings were requested five months later and the draft memorandum was filed on 16 November 2020. Although the delay was inordinate, the counsel's stroke and the pandemic constituted plausible reasons, and a mistake of counsel cannot be visited on the applicant.

p. 3
02

Stay of execution under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Stay declined because the applicant failed to demonstrate substantial loss.

Reasoning

Applying Butt v Rent Restriction Tribunal and the definition of substantial loss in Tropical Commodities Suppliers Ltd v International Credit Bank Ltd, the court held that an applicant must prove the loss she will suffer. The applicant neither attached a copy of the decree nor disclosed the decretal amount, and the respondent deponed she had partly complied and was paying instalments. The court could not tell what was being executed and had insufficient material to grant stay.

p. 3

Legal principles established

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  • A mistake of counsel in failing to file an appeal on time should not be visited upon the litigant.
  • An applicant for stay of execution must prove, not merely assert, that she will suffer substantial loss if stay is not granted.

Court orders

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  1. 1.Leave is granted for the applicant to file and serve her appeal within 14 days from the date of delivery of the ruling
  2. 2.Orders for stay of execution are declined
  3. 3.The applicant is to meet the cost of the application
On appeal from
Makindu Law Courts (Senior Principal Magistrate)
MELC No. 141 of 2010
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time) and Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (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, "Nzei Maweu v Christine Katoto Masila [2021] KEELC 695 (KLR)", Case Analysis (2021). Miscellaneous Application dated 12th November, 2020 (arising from MELC No. 141 of 2010, Makindu Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/695/eng@2021-11-10

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