Judetheus Kiplagat Malakwen v Norman Kibitok Kogo [2021] KEELC 3329 (KLR)
The bottom line
#A Kenyan court refused to extend an expired stay of execution because the landowner did nothing for a year to move his appeal forward.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a reasonable case for review and extension of the expired stay order
No. The Plaintiff did nothing to prosecute the appeal during the one-year stay, and the stay had lapsed before the application was heard, leaving nothing to extend.
The Court found that after obtaining the one-year stay on 19th February 2020, the Plaintiff took no steps towards processing his intended appeal or seeking directions from the Court of Appeal. The defendant rightly pointed out that the trial court's role had ended after the ruling. The Court also took judicial notice that the Court of Appeal continued transacting business during the Covid-19 pandemic, so the pandemic did not excuse the delay. Further, the stay had already lapsed in February 2021, so there was no valid order capable of extension.
Costs of the application
The Defendant is entitled to costs as the application lacked merit.
Having found the Notice of Motion dated 4th February 2021 to be without merit, the Court applied the ordinary rule that costs follow the event and awarded costs to the Defendant.
Legal principles established
#- A stay order granted for a fixed period lapses on expiry of that period and cannot be extended thereafter; a party seeking extension must show what steps were taken to prosecute the appeal.
Court orders
#- 1.The Plaintiff's Notice of Motion dated 4th February, 2021 is dismissed with costs
- 2.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses
- Jurisdiction invoked
- Inherent power of the Court to review and extend its own stay orders (application for review and extension of the stay order of 19th February, 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judetheus Kiplagat Malakwen v Norman Kibitok Kogo [2021] KEELC 3329 (KLR)", Case Analysis (2021). Notice of Motion dated 4th February, 2021 (arising from Nandi/Kebulonik/251 suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3329/eng@2021-05-12
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