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ELCDismissedNotice of Motion dated 10th August 2020 (arising from Webuye Senior Principal Magistrate Case No. 218 of 2017)· [2021] KEELC 2708 (KLR)

Ezekiel Aduga Vitolo v Mwamba Valuers Limited [2021] KEELC 2708 (KLR)

High Court of Kenya at Bungoma
1 July 2021
2,441 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 at Bungoma refused a late appeal because the man waited eight months without a good excuse and had already settled the case by consent.

What this practically means

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Executive summary

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This ruling by the High Court at Bungoma (Boaz N. Olao, J) determined a Notice of Motion dated 10th August 2020 by Ezekiel Aduga Vitolo seeking leave to appeal out of time against a judgment of 15th May 2019 in Webuye Senior Principal Magistrate Case No. 218 of 2017, stay of execution of that judgment, and lifting of warrants of arrest issued on 5th August 2020. The suit below concerned the purchase of land parcel Bokoli/Kituni/2412, in which judgment was entered against the Applicant ex parte with an order that he sign transfer forms. The Applicant blamed non-service of hearing notice on his former advocates and alleged a false affidavit of service. The Respondent opposed, asserting the decree had been fully executed and that a consent recorded on 9th October 2020 marked the matter as settled after the Applicant paid costs and was released from civil jail. Applying Section 79G of the Civil Procedure Act, Order 42 Rule 6, and the Supreme Court's Salat principles, the Court found the eight-month delay unreasonable and unexplained, the Applicant less than candid, and no substantial loss demonstrated. Critically, the unrebutted consent barred any appeal under Section 67(2) of the Civil Procedure Act. The application was dismissed with costs. Order 36 Rule 10 was held inapplicable.

Key legal issues

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01

Whether the Applicant showed good and sufficient cause to warrant extension of time under Section 79G

Holding

The Court found the delay of eight months unreasonable and the explanation lacking candour, particularly as the former advocates on record were not called to corroborate the claim of non-service

Reasoning

The Applicant learned of the judgment on 16th December 2019 but only filed the application on 21st August 2020, some eight months later. His claim that hearing notice was never served on his then advocates was unsupported, since J. Simasi & Company never confirmed this. The delay was therefore unexplained and unreasonable, failing the Section 79G threshold of good and sufficient cause.

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02

Whether the Applicant demonstrated substantial loss for purposes of stay under Order 42 Rule 6

Holding

The Applicant merely asserted loss and prejudice without demonstrating what substantial loss he would suffer

Reasoning

Applying the Salat principles and Kenya Shell, the Court held that an applicant for stay must demonstrate substantial loss. Paragraph 21 of the supporting affidavit merely averred loss and prejudice without particulars. Additionally, the decree had been fully executed: the Applicant had paid costs of Kshs 120,500 and been released from civil jail pursuant to a consent, so no substantial loss could arise.

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03

Effect of the consent recorded on 9th October 2020

Holding

The consent, unrebutted and not impugned for fraud, error or misrepresentation, marked the matter as settled and barred any appeal under Section 67(2) of the Civil Procedure Act

Reasoning

The consent recorded by both Counsel released the Applicant from civil jail upon payment of costs and marked the matter settled. The Applicant did not rebut it and gave no grounds of fraud, error or misrepresentation to set it aside. Section 67(2) bars appeals from consent decrees, rendering the Application futile.

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Legal principles established

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  • Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the Court
  • Substantial loss is the cornerstone for the grant of an order of stay of execution pending appeal
  • No appeal lies from a decree passed by consent of the parties

Court orders

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  1. 1.The Notice of Motion dated 10th August 2020 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 3, 3A, 79G, 67(2)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2); Order 36 Rule 10

Cases cited (2)

  • Nicholas Kiptoo arap Korir Salat v. I.E.B.C & Others
    2014 eKLR
  • Kenya Shell v. Benjamin Karuga Kiriru & Another
    1986 KLR 410
On appeal from
Webuye Senior Principal Magistrate's Court
218 of 2017
Jurisdiction invoked
Sections 3, 3A and 79G of the Civil Procedure Act; Order 42 Rule 6 and Order 36 Rule 10 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Ezekiel Aduga Vitolo v Mwamba Valuers Limited [2021] KEELC 2708 (KLR)", Case Analysis (2021). Notice of Motion dated 10th August 2020 (arising from Webuye Senior Principal Magistrate Case No. 218 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2708/eng@2021-07-01

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