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ELCPartially AllowedBungoma Chief Magistrate's Court Civil Case No 143 of 2018 (application for extension of time and stay)· [2022] KEELC 658 (KLR)

George Masibayi Wafula v Richard Wafula Masinde [2022] KEELC 658 (KLR)

Environment and Land Court of Kenya
24 March 2022
BOBoaz N. Olao
4,299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The court allowed the landowner to appeal late, but refused to halt execution because a dismissed case is a 'negative order' with nothing to stay.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (Olao J) on a Notice of Motion dated 28th January 2022 by George Masibayi Wafula, seeking extension of time to appeal and stay of execution of a judgment delivered on 26th November 2021 by Hon C. A. S. Mutai, Principal Magistrate, in Bungoma Chief Magistrate's Court Civil Case No 143 of 2018, which dismissed his claim for an injunction over a 50 x 120 feet portion of parcel Bukusu/South Kanduyi/2461 and for a refund of Kshs 500,000/= purchase price. On extension of time, the court applied Section 79G of the Civil Procedure Act, Section 16A of the Environment and Land Court Act and the Supreme Court's principles in Nicholas Kiptoo arap Korir Salat v IEBC, holding that the Applicant's explanation - Counsel's oversight in filing away the file, the closure of Counsel's offices over the Christmas holidays, and the Applicant learning of the judgment on 11th January 2022 - constituted good and sufficient cause, and that it would be harsh to punish the Applicant for Counsel's mistake. Leave to appeal out of time was therefore granted with timelines of fifteen days for the appeal and forty-five days for the record of appeal. On stay of execution under Order 42 Rule 6, the court held that the Applicant failed to establish substantial loss - the alleged eviction threat rested on a letter between strangers to the case - failed to offer security, and that the dismissal of the suit was a negative order incapable of execution. The stay was declined, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether good and sufficient cause existed to extend time to appeal

Holding

Yes. The delay was explained by Counsel's oversight in filing away the file, the closure of Counsel's offices over the holidays, and the Applicant only learning of the judgment on 11th January 2022; it would be harsh to punish the Applicant for Counsel's mistake.

Reasoning

The court applied Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, and the principles in Nicholas Kiptoo arap Korir Salat v IEBC. The explanation was found plausible, rational, logical, convincing, reasonable and truthful, and counsel's mistake should not be visited on the client, following Tana & Athi Rivers Development Authority and Philip Chemwolo.

p. 4
02

Whether the Applicant demonstrated substantial loss for stay of execution

Holding

No. Neither the supporting affidavits mentioned what substantial loss would ensue; the alleged eviction threat arose from a letter between strangers to the case.

Reasoning

Substantial loss is the cornerstone of stay applications. The letter dated 12th January 2022 was addressed to the Pastor of Abundant Grace Church International, not the Applicant, and no evidence showed the Respondent had commenced the eviction procedure under Section 152 of the Land Act 2012. The decree and judgment were not even annexed.

p. 5
03

Whether the Applicant offered security for the due performance of the decree

Holding

No. No offer of security was made in the supporting affidavit or on the face of the Notice of Motion.

Reasoning

Order 42 Rule 6(2) requires the applicant to furnish security. The Applicant failed to offer security or aver willingness to abide by conditions, failing this mandatory condition of the stay jurisdiction.

p. 5
04

Whether there is anything capable of being stayed

Holding

No. The Applicant's suit was dismissed; a dismissal is a negative order which cannot be stayed save perhaps for costs.

Reasoning

Following Western College of Arts and Applied Sciences v Oranga and Kanwal Sarjit Singh Dhiman v Kashevji Jivraj Sha, a negative order incapable of execution cannot be stayed. Since no positive obligations were imposed by the judgment, there is nothing to stay.

p. 6

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the Court's discretion, and the reasons offered must be rational, plausible, logical, convincing, reasonable and truthful
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal and must be established on evidence
  • A negative order (a dismissal of a suit) is incapable of execution and cannot be stayed save in respect of costs
  • The offer of security must come from the applicant himself as a sign of good faith

Court orders

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  1. 1.Leave is granted to the Applicant to file and serve his appeal out of time
  2. 2.The appeal be filed and served within fifteen (15) days from the delivery of the ruling
  3. 3.The Record of Appeal be filed and served within forty-five (45) days from the date of serving the appeal
  4. 4.The prayer for stay of execution pending appeal is declined
  5. 5.Costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(e), 79G, 95
  • Civil Procedure RulesOrders 22, 25 and 42 Rule 6(1) and (2)
  • Environment and Land Court ActSection 16A(1)(2)
  • Land ActSection 152

Cases cited (16)

  • Qureshi & Another v Patel & Others
    1964 E.A.L.R 633
  • Hon Attorney General v The Law Society of Kenya & Another
    C.A Civil Appeal No 133 of 2011 (2013 eKLR)
  • Nicholas Kiptoo arap Korir Salat v I.E.B.C & Others
    2014 eKLR
  • Bagajo v Christian's Children Find Inc
    2004 2 KLR 73
  • Fahmi Twaha v Timamu Abdalla & Others
    Supreme Court Civil Application No 35 of 2014
  • Tana & Athi Rivers Development Authority v Jeremia K. Mwakio & Others
    2015 eKLR
  • Philip Chemwolo & Another v Augustine Kubende
    1982 KLR 103
  • Kenya Shell Ltd v Benjamin Kibiru & Another
    1986 KLR 410
  • Vishram Ravji Halai & Another v Thornton & Turpin (1963) Ltd
    1990 KLR 365
  • Machira t/a Machira & Company Advocates v East African Standard (No 2)
    2002 2 KLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    2012 eKLR
  • Wycliff Sikuku Walusaka v Philip Kaita Wekesa
    2020 eKLR
  • Western College of Arts and Applied Sciences v Oranga & Others
    1976-80 1 KLR 78
  • Wilson v Church
  • Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union Kenya
    2015 eKLR
  • Kanwal Sarjit Singh Dhiman v Kashevji Jivraj Sha
    2008 eKLR
On appeal from
Chief Magistrate's Court, Bungoma
Civil Case No 143 of 2018
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Section 16A of the Environment and Land Court Act; Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "George Masibayi Wafula v Richard Wafula Masinde [2022] KEELC 658 (KLR)", Case Analysis (2022). Bungoma Chief Magistrate's Court Civil Case No 143 of 2018 (application for extension of time and stay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/658/eng@2022-03-24

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