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ELCPartially AllowedNot stated in the judgment (the underlying suit was determined by Lady Justice Christine Ochieng on 15/3/2021)· [2021] KEELC 1961 (KLR)

Samuel Maina Gichohi v City Council of Nairobi & another [2021] KEELC 1961 (KLR)

Environment and Land Court
21 September 2021
3,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's land court confirmed it can extend appeal deadlines and pause execution of judgment, but only if you meet strict conditions like monthly deposits.

What this practically means

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Executive summary

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This ruling by B M Ebosso J of the Environment and Land Court determines a notice of motion dated 15/4/2021 by the plaintiff, Mark Gitonga Mathenge, seeking leave to file a notice of appeal out of time against the judgment of Lady Justice Christine Ochieng delivered virtually on 15/3/2021, together with a stay of execution of that judgment. The underlying judgment had ordered the plaintiff to remove developments on Plot No R8, part of Land Reference Number 71/5 Kahawa West Nairobi, awarded the 2nd defendant special damages of Kshs 20,500 on her counter-claim, and granted injunctions and costs to the defendants. The plaintiff explained that the Kajiado registry refused his notice of appeal because the case was a Nairobi file, while the Nairobi registry refused it because the file remained at Kajiado. The 1st defendant opposed, arguing that only the Court of Appeal could grant leave under the Appellate Jurisdiction Act and that stay could only be sought there. The court framed four questions and held that, under Section 7 of the Appellate Jurisdiction Act read with Articles 259(3)(d) and 162(2) of the Constitution, the ELC, as a court of equal status with the High Court, has jurisdiction to enlarge time, and that under Order 42 rule 6(1) the court appealed from may grant stay. Applying the Salat principles, the court found the delay explained, no inordinate delay and no prejudice, and found substantial loss because the plaintiff's dwelling houses would be demolished. The application was allowed: 14 days' extension to file the notice of appeal, 30 days to file the record of appeal, monthly deposits of Kshs 13,000 as security, and a conditional stay of execution for twelve months, vacated on default. No costs order was made on the application.

Key legal issues

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01

Jurisdiction of the ELC to extend time for filing a notice of appeal

Holding

The court has jurisdiction under Section 7 of the Appellate Jurisdiction Act to enlarge time, the ELC being a court of equal status with the High Court.

Reasoning

Section 7 grants the High Court power to extend time for giving notice of intention to appeal. By Article 259(3)(d) of the Constitution, a reference to the High Court is construed as a reference to a court of equal status exercising jurisdiction under Article 162(2), which is the Environment and Land Court. The 1st defendant's reliance on a non-existent 'Section 75(1) and (2)' of the Act could not displace this jurisdiction. Githinji JA in Kenya Airports Authority v Mutungi had decided the same question the same way.

p. 2
02

Jurisdiction of the court appealed from to grant stay pending appeal

Holding

The court appealed from has jurisdiction under Order 42 rule 6(1) to receive, consider and grant an application for stay of execution pending the filing and determination of an appeal.

Reasoning

Order 42 rule 6(1) expressly provides that the court appealed from may, for sufficient cause, order stay of execution of the decree or order appealed from. Counsel for the 1st defendant raised the objection in the grounds of opposition but did not address it in oral submissions, so the court made only brief pronouncement on the point.

p. 3
03

Whether the criteria for extension of time were satisfied

Holding

The applicant satisfied the Salat criteria: the delay was reasonably explained by registry refusals and the unavailability of the court file, there was no inordinate delay and no prejudice to the defendants.

Reasoning

The judgment was delivered on 15/3/2021 at Kajiado ELC; the Kajiado registry declined the notice of appeal because the case was a Nairobi file, and the Nairobi registry declined because the file was at Kajiado. The explanation was uncontroverted and found reasonable. The notice was dated 22/3/2021 within the 14-day period, and the application was filed on 15/4/2021. No prejudice to the defendants was demonstrated.

p. 3
04

Whether the criteria for stay of execution were satisfied

Holding

Substantial loss was demonstrated because the disposal orders required demolition of the applicant's dwelling houses, and the application was made without unreasonable delay; stay was granted conditionally with security.

Reasoning

The applicant contended, without contestation, that the structures to be removed included his dwelling houses, so execution would cause substantial loss if the appeal succeeded. Balancing this against the 2nd defendant's entitlement to enjoy the fruits of the judgment, the court granted a conditional stay of twelve months with monthly deposits of Kshs 13,000 as security, vacating the stay on default.

p. 4

Legal principles established

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  • An Environment and Land Court, being a court of equal status with the High Court under Article 162(2) as construed by Article 259(3)(d), has jurisdiction under Section 7 of the Appellate Jurisdiction Act to enlarge the time within which an aggrieved party may give notice of intention to appeal.
  • The court appealed from has jurisdiction under Order 42 rule 6(1) of the Civil Procedure Rules to receive, consider and grant a plea for stay of execution pending appeal.
  • The Salat principles govern extension of time: it is an equitable, discretionary remedy requiring explanation of delay, absence of prejudice and absence of undue delay.
  • Substantial loss for stay purposes is demonstrated by showing the applicant stands to suffer and may not be put back to his original position prior to execution.

Court orders

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  1. 1.The plaintiff is granted an extension of 14 days within which to file and serve a notice of appeal relating to the Judgment rendered by Justice Christine Ochieng on 15/3/2021
  2. 2.The plaintiff shall prepare, file, and serve his record of appeal within 30 days from the date of the ruling
  3. 3.The plaintiff shall deposit in court Kshs 13,000 on or before the 5th day of every month, effective from the date of the ruling, as security, to be released to the successful party in the intended appeal as between the plaintiff and the 2nd defendant
  4. 4.Subject to compliance with orders (a), (b) and (c), there shall be stay of execution of the judgment rendered on 15/3/2021 for a period of twelve (12) months; in default of compliance, the order of stay shall stand vacated

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Appellate Jurisdiction ActSection 5 (invoked by 1st defendant)
  • Appellate Jurisdiction ActSection 75(1) and (2) (invoked by 1st defendant; not found by the court)
  • Constitution of Kenya 2010Article 259(3)(d)
  • Constitution of Kenya 2010Article 162(2)
  • Civil Procedure RulesOrder 42 rule 6(1) and 6(2)
  • Court of Appeal RulesSection 7 (as referred to in Kenya Airports Authority v Mutungi)

Cases cited (7)

  • Presbyterian Foundation v Bernard Ole Mureu & Others
    (2021) eKLR
  • Josephine Wambui Githinji v Peter Kimuhiu
  • Kenya Airports Authority & another v Timothy Mduvi Mutungi
    Court Of Appeal Civil Application No NAI 165 of 2013 (UR 113/2013) (2014 eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electral and Boundaries Commission & 7 others
    [2014] eKLR
  • Butt v Rent Restriction Tribunal
  • Kenya National Highways Authority v Ahmendnasir Maalim Abdullah
    [2020] eKLR
  • Kenya Shell Ltd v Benjamin Karuya Kibiru
    (1986) eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act (Cap 9) and Article 259(3)(d) read with Article 162(2) of the Constitution of Kenya 2010; Order 42 rule 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, "Samuel Maina Gichohi v City Council of Nairobi & another [2021] KEELC 1961 (KLR)", Case Analysis (2021). Not stated in the judgment (the underlying suit was determined by Lady Justice Christine Ochieng on 15/3/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1961/eng@2021-09-21

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