Jackson Ndungu Kaguae & Another v Attorney General & 2 others [2021] KEELC 1362 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant satisfied the Order 42 Rule 6(2) conditions for stay of execution
The court found substantial loss likely, the delay explained, and security offered, so all three conditions were met.
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.
Whether the delay of almost 19 years in bringing the application was excusable
The delay was excused on the applicant's sworn explanation of lack of knowledge and representation.
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.
Whether leave to appeal out of time should be granted
Leave was granted to file the Notice of Appeal and appeal out of time within 30 days.
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.
Legal principles established
#- 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
#- 1.There be a stay of execution of the judgment/decree of this Honourable Court issued on 26th September 2002
- 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.The Defendant/Applicant to pay the Plaintiffs/Respondents thrown away costs assessed at Ksh. 20,000/- within 30 days from today
- Jurisdiction invoked
- Order 42 Rule 6(1) Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.