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ELCDismissedNot stated in judgment (Meru ELC notice of motion dated 11th February 2021)· [2021] KEELC 1965 (KLR)

Karwitha Sella Isaac & another v Family Debtors Choice Agencies & another [2021] KEELC 1965 (KLR)

Environment and Land Court
22 September 2021
LMLucy N. Mbugua
1,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed an application to appeal late and stop execution because the applicant couldn't explain a four-month delay.

What this practically means

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Executive summary

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The applicants/defendants moved the Environment and Land Court at Meru by notice of motion dated 11th February 2021 seeking leave to file a notice of appeal out of time against the court's judgment of 18th November 2020 in a land dispute, plus a stay of execution of the resulting decree pending the intended appeal. The application, supported by the affidavit of Ignatius Gitonga Kinge, a director of the 1st defendant, was brought under Sections 1, 1A, 3, 3A, 63(e) and 79G of the Civil Procedure Act and Orders 51 rule 1 and 42 Rule 6 of the Civil Procedure Rules. The applicant contended that judgment was delivered via Microsoft Teams in the parties' absence and that refusal of stay would render him homeless, destitute and a squatter. The 1st plaintiff/respondent opposed, arguing inordinate and unexplained delay, absence of a draft memorandum of appeal demonstrating an arguable appeal, and that the court was functus officio. The court framed two issues: its jurisdiction to extend time, and whether stay was merited. It confirmed jurisdiction under Section 7 of the Appellate Jurisdiction Act but found the delay unexplained, because the judgment was in fact delivered by email on 18.11.2020, Teams delivery having commenced only on 15.4.2021. On substantial loss, the pleadings showed the respondents, not the applicant, were in possession of the suit lands. The application was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction to extend time for filing notice of appeal

Holding

The court had jurisdiction under Section 7 of the Appellate Jurisdiction Act to extend time, but the applicant failed to satisfactorily explain the delay.

Reasoning

The court set out Section 7 of the Appellate Jurisdiction Act empowering the High Court to extend time for giving notice of intention to appeal. However, the applicant's claim that judgment was delivered via Teams was contradicted by the record: the judgment was delivered by email on 18.11.2020, and Teams delivery only commenced on 15.4.2021. The four-month delay was therefore unexplained.

p. 2
02

Whether the conditions for stay of execution were met

Holding

The application failed on substantial loss: the applicant's claim of being rendered homeless was contradicted by the pleadings showing the respondents were in possession of the suit lands.

Reasoning

Applying the criteria in Halal & Another v Thornton & Turpin Ltd (sufficient cause, substantial loss, security, no unreasonable delay), the court found the applicant's assertion that he would be rendered homeless inconsistent with the pleadings, which showed the respondents were in possession and feared eviction by the 2nd defendant. Security of costs was also not addressed by the applicant, though the court noted it is discretionary.

p. 2

Legal principles established

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  • The High Court may extend time for giving notice of intention to appeal even after the time has expired (Section 7, Appellate Jurisdiction Act)
  • Stay of execution is granted where substantial loss is shown, the application is made without unreasonable delay, and security is offered

Court orders

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  1. 1.The application dated 11.2.2021 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A, 63(e), 79G
  • Civil Procedure RulesOrder 51 rule 1; Order 42 Rule 6; Order 42 rule 6(1); Order 21 rule 1
  • Appellate Jurisdiction Act Cap 9Section 7
  • Court of Appeal RulesRule 41

Cases cited (9)

  • Alibhai Musajee V Shariff Mohammed Al-Bet
    Civil Appeal No. 283 of 1998
  • Berber Alibhai Mawji V Sultan Hasham Lalji & 2 others
    [1990-1994] EA 337
  • Dilpack Kenya Limited V William Muthama Kitonyi
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat V IEBC & 7 Others
  • Mohamed Ali Sheikh v Abdiwahab Sheikh Osman Hathe & 3 others
    [2019] eKLR
  • Feisal Amin Jan Mohammed T/A Dunyia Forwarders vs Shami Trading Co. Ltd
    (2014) eKLR
  • Masisi Mwita Vs Damaris Wanjiku Njeri
    (2016) eKLR
  • Halal & Another Vs Thornton & Turpin Ltd
  • Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd
    [2019] eKLR
Jurisdiction invoked
Sections 1, 1A, 3, 3A, 63(e) & 79G of the Civil Procedure Act, Order 51 rule 1 and Order 42 Rule 6 of the Civil Procedure Rules; Section 7 of the Appellate Jurisdiction Act Cap 9

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, "Karwitha Sella Isaac & another v Family Debtors Choice Agencies & another [2021] KEELC 1965 (KLR)", Case Analysis (2021). Not stated in judgment (Meru ELC notice of motion dated 11th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1965/eng@2021-09-22

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