Samuel Mutugi Mugambi v Lawrence Bundi Ayub [2021] KEELC 3216 (KLR)
The bottom line
#A Kenyan court allowed a late land appeal because Covid-19 caused the delay, but refused to pause enforcement of the judgment.
What this practically means
#Executive summary
#Key legal issues
#Leave to appeal out of time under Section 79G of the Civil Procedure Act
Good and sufficient cause was shown; the applicant was unaware of the delivery of judgment due to Covid-19 court interruptions and acted promptly upon discovery
Section 79G requires appeals from subordinate courts to be filed within thirty days, with the proviso allowing admission out of time on good and sufficient cause. The applicant explained he learned of the judgment only on 3/06/2020 and filed immediately. The court took judicial notice that Covid-19 pandemic directives interrupted court services, so the applicant was not guilty of inordinate delay and the leave was merited.
Whether the intended appeal must be shown to be arguable by attaching a draft memorandum
Absence of a draft memorandum does not render the application incompetent; arguability is not determined at this stage
Relying on Paul Wanjohi Mathenge v Duncan Gichane Mathenge, the court held that failure to attach a draft memorandum of appeal does not make the application incompetent, and even if attached the court would not determine the merits of the grounds at that juncture. An arguable appeal is one that ought to be argued fully before the court, and the demands of justice favour allowing ventilation of the parties' positions on merit.
Whether substantial loss was demonstrated to justify stay of execution under Order 42 rule 6
No substantial loss shown; mere cultivation and a temporary structure on land distant from the applicant's home do not suffice
Stay requires, among other prerequisites, demonstration of substantial loss with specific details and particulars. The trial court's judgment showed the applicant's home was 2 1/2 kilometres from the suit land, where he had planted trees and food crops and put up a temporary structure. Following Machira and Wellington Lusweti Baraza, living on or cultivating land is not sufficient reason for a stay; the prayer was declined.
Legal principles established
#- The right of appeal or the right to be heard is constitutionally entrenched and can only be withheld in exceptional circumstances
- Failure to attach a draft memorandum of appeal does not by itself render an application for extension of time incompetent
Court orders
#- 1.Leave granted to the applicant to file an appeal out of time against the judgment in Nkubu ELC No. 30 of 2017 delivered on 29/04/2020
- 2.Prayer for stay of execution declined
- 3.Applicant ordered to file and serve his memorandum of appeal within fourteen (14) days of the date of the ruling, failing which the orders granted shall lapse
- 4.Costs shall abide the outcome of the appeal
- On appeal from
- Nkubu Environment and Land Court
- ELC No. 30 of 2017
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 51 and Order 42 rule 6 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Mutugi Mugambi v Lawrence Bundi Ayub [2021] KEELC 3216 (KLR)", Case Analysis (2021). Notice of motion dated 18th June 2020 (arising from Nkubu ELC No. 30 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3216/eng@2021-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.