Everlyne Kemunto Ontiri & another v Charles Onsongo Mochama & another [2021] KEELC 2907 (KLR)
The bottom line
#The court refused to pause a land case or extend appeal time because the applicants showed no arguable appeal and no proven interest in the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants were entitled to an order of stay of proceedings in the lower court suit pending the intended appeal
The application failed the settled test for stay: no arguable appeal was demonstrated and no substantial loss or interest in the suit property was shown.
The court applied Order 42 Rule 6(2) principles and the Court of Appeal test in Chris Munga N. Bichage v Richard Nyagaka Tongi. It found the lower court dismissed the amendment application because the fraud pleaded in the counterclaim was time-barred under the Limitation of Actions Act and the counterclaim had no prayers. The Applicants did not counter the limitation point below and did not demonstrate their interest in the suit property, so stay could not issue.
Whether leave to appeal out of time should be granted
Although sufficient reasons were given for the delay (Covid-19 court closures, advocate's ill health, unfamiliarity with the Electronic Case Management Practice Directions 2020), leave was effectively refused because the intended appeal was not arguable.
Order 50 Rule 6 gives courts unfettered discretion to enlarge time. The court accepted the Applicants' explanation for the delay as sufficient, but held that enlargement of time alone does not avail an applicant whose intended appeal is frivolous; on analysis of the ruling, proceedings and draft memorandum, no arguable appeal was disclosed.
Legal principles established
#- An applicant for stay of execution/proceedings pending appeal must demonstrate that the appeal or intended appeal is arguable and that, if the application is not granted, the success of the appeal would be rendered nugatory; both limbs must be shown.
- Courts have unfettered discretion to enlarge time for doing any act under the Civil Procedure Rules.
Court orders
#- 1.The application seeking stay of proceedings in Kisii ELC No. 75 of 2019 and leave to appeal out of time is dismissed.
- 2.Costs of the application awarded to the 1st Respondent.
- On appeal from
- Lower court (magistrates' court, suit transferred from ELC)
- Kisii ELC Case No. 75 of 2019 (originally ELC No. 5 of 2018)
- Jurisdiction invoked
- Order 50 Rule 6 and Order 42 Rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everlyne Kemunto Ontiri & another v Charles Onsongo Mochama & another [2021] KEELC 2907 (KLR)", Case Analysis (2021). Miscellaneous Notice of Motion dated 24th September, 2020 (arising from Kisii ELC Case No. 75 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2907/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.