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ELCDismissedNot stated in judgment (application dated 25th June, 2020)· [2021] KEELC 2986 (KLR)

Kaakai Ene Nankoo Mosiany v Kateto Ole Kironki Miisia & 2 others [2021] KEELC 2986 (KLR)

Environment and Land Court
31 May 2021
1,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court dismissed an application to extend time and stay execution, confirming only the Court of Appeal can extend time to lodge a Notice of Appeal in Kenya.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kajiado (Christine Ochieng, J) on a Notice of Motion dated 25th June, 2020 by the 1st Respondent, Kironki Ole Misiia, seeking a stay of execution of the judgment delivered on 29th April, 2020 and an extension of time to lodge a Notice of Appeal against that judgment, which had declared Kaakai Ene Nankoo Mosiany the bona fide registered proprietor of land parcel KAJIADO/DALALEKUTUK/3134 and directed cancellation of the 1st Respondent's resultant title. The application was supported by the affidavit of Kelvin Mogeni, who explained that the Notice of Appeal had been prepared but inadvertently not filed, and was opposed through the replying affidavit of Ivan Kipkoech Rono, who termed it scandalous, an afterthought filed after the lapse of the 90-day stay, and asserted that no substantial loss had been pleaded. The court framed two issues: extension of time and stay of execution. On extension of time, the court held that under Rules 4 and 75 of the Court of Appeal Rules only the Court of Appeal can extend time to lodge a Notice of Appeal, treating the ELC authorities relied upon as persuasive only, and declined the prayer. On stay, applying Order 42 Rule 6(2) and Rule 5(b) of the Court of Appeal Rules, the court found that no Notice of Appeal had been lodged, that no substantial loss or prejudice had been demonstrated, and that the Applicant was the registered owner as administrator and beneficiary of the deceased owner. The application was dismissed with costs.

Key legal issues

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01

Whether the court has jurisdiction to extend time to lodge a Notice of Appeal

Holding

It does not; that jurisdiction belongs to the Court of Appeal alone under Rules 4 and 75 of the Court of Appeal Rules

Reasoning

The court examined Rules 4 and 75 of the Court of Appeal Rules under the Appellate Jurisdiction Act and held that extension of time to lodge a Notice of Appeal is a matter within the exclusive competence of the Court of Appeal. The ELC decisions relied on by the 1st Respondent were regarded as persuasive only, not binding. The prayer for extension of time was therefore declined for want of jurisdiction.

p. 2
02

Whether a stay of execution of the judgment of 29th April 2020 should be granted pending the intended appeal

Holding

No; the 1st Respondent failed to demonstrate substantial loss or lack of prejudice, and no Notice of Appeal had been lodged

Reasoning

Under Order 42 Rule 6(2), an applicant must show substantial loss, that the application was made without unreasonable delay, and provide security. Rule 5(b) of the Court of Appeal Rules requires a lodged Notice of Appeal before stay can be ordered. The 1st Respondent's affidavit did not indicate the loss he would suffer, and the Applicant is the registered owner as administrator and beneficiary of the deceased owner. The threshold was not met and the stay was refused.

Legal principles established

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  • The jurisdiction to extend time for lodging a Notice of Appeal out of time under Rules 4 and 75 of the Court of Appeal Rules vests exclusively in the Court of Appeal, not the High Court or Environment and Land Court
  • An applicant for stay of execution must satisfy the conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security

Court orders

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  1. 1.The 1st Respondent's Notice of Motion application dated 25th June, 2020 is dismissed
  2. 2.Costs of the application awarded to the Applicant (now Respondent)

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 95
  • Appellate Jurisdiction ActSection 7
  • Civil Procedure RulesOrder 50 Rule 1
  • Appellate Jurisdiction Act (Court of Appeal Rules)Rule 4
  • Appellate Jurisdiction Act (Court of Appeal Rules)Rules 75(1) & (2)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Appellate Jurisdiction Act (Court of Appeal Rules)Rule 5(b)

Cases cited (10)

  • James Wangalwa & Another Vs Agnes Maliaka Cheseto
    (2012) eKLR
  • Housing Finance Company of Kenya V Sharok Kher Mohammed Ali Hirji & Another
    (2015) eKLR
  • John Gachanja Mundia V Francis Murira Alias Francis Muthika & Another
    (2016) eKLR
  • Victory Construction v BM (a minor suing through next friend one PMM)
    (2019) eKLR
  • Century Oil Trading Company Limited v Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • Machira t/a Machira & Co. Advocates V East African Standard
    (2002) KLR 63
  • Leo Sila Mutiso V. Rose Hellen Wangari Mwangi
    (1999) 2 EA 231
  • Hannah Muthii Kibindu V Stephen Njine Kibindu & Another
    (2020) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Wangalwa & Another Vs Agnes Maliaka Cheseto
    Bungoma HC Misc Application No. 42 of 2011
Jurisdiction invoked
Sections 1A, 1B, 3A and 95 of the Civil Procedure Act, Order 50 Rule 1 and Order 42 Rule 6(2) of the Civil Procedure Rules, and Sections 4, 5(b) and 75 of the Appellate Jurisdiction Act (Court of Appeal 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, "Kaakai Ene Nankoo Mosiany v Kateto Ole Kironki Miisia & 2 others [2021] KEELC 2986 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 25th June, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2986/eng@2021-05-31

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