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ELCDismissedELC Case No. 230 of 2018 (Kajiado CMCC)· [2021] KEELC 3714 (KLR)

Lucy Muthoni Muturi v Daniel Towett Misoi & another [2021] KEELC 3714 (KLR)

Environment and Land Court
12 April 2021
COChristine Ochieng
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to extend time for filing an appeal, ruling that COVID-19 could not excuse a delay that began before court closures.

What this practically means

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Executive summary

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The Applicant, Lucy Muthoni Muturi, moved the Environment and Land Court at Kajiado by Notice of Motion dated 27 July 2020 seeking stay of execution of the judgment and decree of the Chief Magistrates' Court at Kajiado (Hon. SM Shitubi CM) delivered on 22 January 2020 in ELC Case No. 230 of 2018, which dismissed her suit with costs and allowed the 1st Respondent's counterclaim, and extension of time to lodge a Memorandum of Appeal. She attributed the delay in filing the appeal to the COVID-19 pandemic and the downscaled court services, asserting the appeal raised arguable grounds and offering to furnish security. The Respondents opposed via Grounds of Opposition, relying on the NCAJ COVID-19 directives to argue that courts were only downscaled from March 2020, after the appeal period had lapsed. The court framed two issues: enlargement of time and stay of execution. On the first, applying section 79G and section 95 of the Civil Procedure Act and the Dilpack decision, it found the delay (judgment in January 2020; application filed in July 2020) predated the COVID-19 disruptions and reflected negligence and inaction, so no good and sufficient cause was shown; extension was refused. On the second, applying Order 42 Rule 6(2) and Butt v Rent Restriction Tribunal, the court found no demonstration of substantial loss and noted no appeal was on file; stay was refused. The application was dismissed with costs to the Respondents and the interim stay orders were vacated.

Key legal issues

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01

Whether time should be enlarged to lodge the Memorandum of Appeal out of time

Holding

Extension refused; the Applicant failed to show good and sufficient cause for the delay.

Reasoning

Judgment was delivered on 22 January 2020, before courts downscaled operations in March 2020 due to COVID-19. The application was filed six months after judgment. Relying on Dilpack Kenya Limited v William Muthama Kitonyi and section 79G of the Civil Procedure Act, the court found negligence and inaction, holding that blaming COVID-19 could not supply the good and sufficient cause required, and declined to exercise its discretion to enlarge time.

p. 2
02

Whether stay of execution pending the intended appeal should be granted

Holding

Stay refused; substantial loss not demonstrated and no appeal on file.

Reasoning

Under Order 42 Rule 6(2), an applicant must show substantial loss, that the application was made without unreasonable delay, and offer security. Applying Butt v Rent Restriction Tribunal, the court noted the Respondents were on the suit land, that no appeal had been filed against the lower court judgment, and found the Applicant failed to demonstrate irreparable harm, warranting refusal of the stay and vacation of interim stay orders.

p. 2

Legal principles established

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  • An applicant for enlargement of time under section 79G must show good and sufficient cause for the delay; a delay that predates supervening events such as the COVID-19 court closures does not qualify.
  • Stay of execution under Order 42 Rule 6(2) requires demonstration of substantial loss, absence of unreasonable delay, and provision of security.

Court orders

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  1. 1.The Notice of Motion application dated 27th July 2020 is dismissed with costs to the Respondents.
  2. 2.The orders of stay of execution of judgement and decree in Kajiado CMCC No. 230 of 2018 are vacated.

Authorities

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Legislation

  • Environment and Land Court Actsections 13(1) & (2), 16A(1) & (2), 19(1) & (2)
  • Civil Procedure Actsections 1A, 1B, 3A, 63(e), 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6(2); Rule 51(1)
  • Constitution of KenyaArticles 48, 50, 159(2)(d)

Cases cited (5)

  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Feroz Begum Qureshi and Another vs. Maganbhai Patel and Others
    [1964] EA 633
  • Daphne Parry vs. Murray Alexander Carson
    [1963] EA 546
  • Alibhhai Musajee vs. Shariff Mohammed Al-Bet
    Civil Appeal No. 283 of 1998
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Chief Magistrates' Court at Kajiado
ELC Case No. 230 of 2018
Jurisdiction invoked
Sections 13(1) & (2), 16A(1) & (2) and 19(1) & (2) of the Environment and Land Court Act; Sections 1A, 1B, 3A, 63(e) & 95 of the Civil Procedure Act; Rules 42(6)(2) & 51(1) of the Civil Procedure Rules; Articles 48, 50 and 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Muthoni Muturi v Daniel Towett Misoi & another [2021] KEELC 3714 (KLR)", Case Analysis (2021). ELC Case No. 230 of 2018 (Kajiado CMCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3714/eng@2021-04-12

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