Maurice Juma Mutale & another v Jully Nasambu Nabichenje [2022] KEELC 619 (KLR)
The bottom line
#A Bungoma court let the applicants appeal late but refused to pause execution of the judgment, because they showed no real loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether new counsel could act after judgment without leave under Order 9 Rule 9
The infraction was not fatal; an appeal is new proceedings and parties may choose new counsel without a Notice of Change
Relying on Tobias M. Wafubwa v Bishop Ben Butali, the court held that an appeal is a commencement of new proceedings, so the applicants were entitled to engage new counsel without leave. No prejudice or miscarriage of justice was shown by the respondent, and Article 159 and the overriding objective favour substantive justice.
Whether the delay of 35 days in filing the appeal was excusable
Yes — the delay was not inordinate, being explained by the time taken to prepare and certify proceedings and the need to consult new counsel
Judgment was delivered on 18 October 2021; the applicants applied for proceedings the next day, and the proceedings were certified ready on 15 November 2021. The explanation was rational, plausible, logical, convincing, reasonable and truthful, with no bad faith and no prejudice to the respondent, satisfying the test for good and sufficient cause.
Whether the applicants satisfied the conditions for stay of execution under Order 42 Rule 6
No — they failed to demonstrate substantial loss, offered no security, and the application followed the respondent's Bill of Costs
All four conditions under Order 42 Rule 6(1) and (2) must be met. The applicants only asserted vague irreparable loss without particulars, offered no security, and only moved the court 20 days after being served with the Bill of Costs, suggesting the application was intended to obstruct the respondent's enjoyment of the judgment.
Legal principles established
#- Non-compliance with Order 9 Rule 9 where an advocate comes on record after judgment is not fatal where it causes no prejudice, since an appeal commences new proceedings
- Extension of time is an equitable remedy requiring good and sufficient cause, not a right
- Substantial loss is the cornerstone of an application for stay of execution pending appeal
- An applicant for stay must satisfy all conditions under Order 42 Rule 6(1) and (2), not only some
Court orders
#- 1.Leave is granted to the Applicants to file and serve their appeal out of time
- 2.The appeal be filed and served within fifteen (15) days from today
- 3.The record of appeal be filed and served within forty five (45) days from the date of filing and serving the appeal
- 4.The prayer for stay of execution pending appeal is declined
- 5.Costs of this application shall abide the outcome of the appeal
- On appeal from
- Kimilili Senior Principal Magistrate's Court
- ELC Case No 39 of 2018
- Jurisdiction invoked
- Sections 79G Civil Procedure Act and 16A Environment and Land Court Act (appeals from subordinate courts)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Juma Mutale & another v Jully Nasambu Nabichenje [2022] KEELC 619 (KLR)", Case Analysis (2022). Bungoma High Court (ELC) — application arising from Kimilili SPMCC ELC Case No 39 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/619/eng@2022-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.