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ELCDismissedNotice of Motion dated 4th February, 2021 (arising from Nandi/Kebulonik/251 suit)· [2021] KEELC 3329 (KLR)

Judetheus Kiplagat Malakwen v Norman Kibitok Kogo [2021] KEELC 3329 (KLR)

Environment and Land Court
12 May 2021
925 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff, Judetheus Kiplagat Malakwen, moved the Court by Notice of Motion dated 4th February 2021 seeking review and extension by one year of a conditional stay of execution granted on 19th February 2020. The stay had been granted pending the hearing of his intended appeal against the judgment of 1st August 2019, in which the Court found in favour of the Defendant, Norman Kibitok Kogo, on his counterclaim to two acres of Nandi/Kebulonik/251 by adverse possession. The Plaintiff attributed the delay in hearing his appeal to a shortage of Court of Appeal Judges and the Covid-19 pandemic. The Defendant opposed, contending the Court was functus officio, that the Plaintiff had a whole year to prosecute the appeal or seek interlocutory relief from the Court of Appeal and did not, and that directions for virtual hearings during the pandemic meant the delay was inexcusable. The Court framed two issues: whether a reasonable case for review and extension was established, and costs. It found no evidence that the Plaintiff had done anything towards the appeal since 19th February 2020, took judicial notice that the Court of Appeal continued working during the pandemic, and held that in any event the stay had already lapsed in February 2021, leaving no valid order to extend. The motion was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the Plaintiff established a reasonable case for review and extension of the expired stay order

Holding

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.

Reasoning

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.

p. 2
02

Costs of the application

Holding

The Defendant is entitled to costs as the application lacked merit.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Plaintiff's Notice of Motion dated 4th February, 2021 is dismissed with costs
  2. 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

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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, "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

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