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ELCAllowedNotice of Motion dated 20th September 2019 in formerly Nairobi HCCC No. 1162 of 1996· [2021] KEELC 1362 (KLR)

Jackson Ndungu Kaguae & Another v Attorney General & 2 others [2021] KEELC 1362 (KLR)

Environment and Land Court
26 October 2021
4,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a county government to pause a 19-year-old land judgment and appeal late, because it genuinely never knew about the case.

What this practically means

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Executive summary

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By a Notice of Motion dated 20th September 2019, the 3rd Defendant (Kirinyaga County Council, through its County Attorney Caroline Kinyua) sought stay of execution of the decree of 26th September 2002 - which declared that it held land parcel MUTIRA/KIRIMUNGE/219 in trust for the Plaintiffs and directed execution of transfers - plus leave to file a Notice of Appeal and the appeal out of time. The Applicant claimed it was unaware of the suit, unrepresented, and denied a hearing, and argued the suit property is Gazetted public swamp land incapable of private allocation, invoking Article 40(6) of the Constitution and Section 28 of the Land Registration Act. The Plaintiffs opposed, asserting the Defendant was represented throughout, had already executed mutation forms, that the land is a rice field not a swamp, and that a delay of over 17 years was unexplained since litigation must come to an end. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the principles in Bhutt v Rent Restriction Tribunal, R.W.W. v E.K.W. and Focin Motorcycle Co. Ltd v Ann Wambui Wangui, the court found all three stay conditions satisfied: substantial loss was likely, the nearly 19-year delay was explained on oath (the respondents producing no notice of appointment of advocates by the defunct council), and the offer of security was a mark of good faith. The application was allowed: execution of the 2002 decree was stayed, leave to appeal out of time was granted within 30 days, and thrown away costs of Ksh. 20,000/- were awarded to the Plaintiffs payable within 30 days.

Key legal issues

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01

Whether the applicant satisfied the Order 42 Rule 6(2) conditions for stay of execution

Holding

The court found substantial loss likely, the delay explained, and security offered, so all three conditions were met.

Reasoning

The court weighed the rights of the applicant against those of a successful litigant. It found the applicant likely to suffer substantial loss as trustee of community land; accepted on oath the explanation that the 3rd Defendant was unaware of the suit until contempt proceedings were commenced, noting the respondents failed to attach any notice of appointment of advocates by the defunct Kirinyaga County Council; and held the offer of security to be good faith sufficient to satisfy the third ground.

p. 6
02

Whether the delay of almost 19 years in bringing the application was excusable

Holding

The delay was excused on the applicant's sworn explanation of lack of knowledge and representation.

Reasoning

Although the judgment was issued on 26th September 2002, nearly 19 years before the application, the County Attorney deposed that the 3rd Defendant was unaware of the suit and unrepresented until served with contempt proceedings. The respondents' assertion that the defendant was represented was not substantiated by any notice of appointment or letter of appointment, and the court declined to make a definitive finding on matters reserved for the intended appeal.

p. 6
03

Whether leave to appeal out of time should be granted

Holding

Leave was granted to file the Notice of Appeal and appeal out of time within 30 days.

Reasoning

Having found the application meritorious on substantial loss, explanation of delay and offer of security, the court exercised its discretion to allow both the stay and the extension of time, conditioning relief on payment of thrown away costs of Ksh. 20,000/- within 30 days.

p. 6

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, no unreasonable delay, and security for due performance of the decree.
  • The court's discretion on stay must be exercised so as not to render the appeal nugatory.
  • An offer to furnish security is a mark of good faith in a stay application.

Court orders

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  1. 1.There be a stay of execution of the judgment/decree of this Honourable Court issued on 26th September 2002
  2. 2.Leave be and is hereby granted to the 3rd Defendant/Applicant to file Notice of Appeal and the Appeal out of time within 30 days from the date of this Ruling
  3. 3.The Defendant/Applicant to pay the Plaintiffs/Respondents thrown away costs assessed at Ksh. 20,000/- within 30 days from today

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and 6(2)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 47
  • Land Registration Act, 2012Section 28

Cases cited (3)

  • Bhutt Vs Rent Restriction Tribunal
    (1982) K.L.R 417
  • R.W.W. Vs E.K.W.
    (2019) e K.L.R
  • Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & Another
    (2018) e K.L.R
Jurisdiction invoked
Order 42 Rule 6(1) Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Jackson Ndungu Kaguae & Another v Attorney General & 2 others [2021] KEELC 1362 (KLR)", Case Analysis (2021). Notice of Motion dated 20th September 2019 in formerly Nairobi HCCC No. 1162 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1362/eng@2021-10-26

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