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ELCPartially AllowedNotice of Motion dated 8th November 2021 (arising from CMELC Case No. 281 of 2018)· [2022] KEELC 1008 (KLR)

Evans Monari (Suing as the legal representative of the estate of the late George Hudson Monari Ogeto) v Moraa Mosoti;Kennedy Monari & 2 others(Suing as the legal representatives of the estate of the late George Hudson Monari Ogeto)(Intended Substitutes/Applicants) [2022] KEELC 1008 (KLR)

High Court of Kenya
8 March 2022
1,294 words in judgment
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The bottom line

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The Kisii High Court let a family appeal a ruling that cancelled their eviction order, even though they filed late, and froze the land case until the appeal is decided.

What this practically means

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Executive summary

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This ruling of the High Court at Kisii (J.M. Onyango J) determined a Notice of Motion dated 8 November 2021 by the legal representatives of the estate of the late George Hudson Monari Ogeto, original plaintiff in a trespass suit over parcel CENTRAL KITUTU/DARAJA MBILI/926 (CMELC Case No. 281 of 2018). The deceased had obtained ex-parte judgment and an eviction order against the Respondent, but the Chief Magistrate (Hon. Nathan Shiundu Lutta) set aside the ex-parte judgment by ruling dated 28 July 2021. The Applicants sought substitution in place of the deceased, leave to appeal out of time against that ruling, and a stay of proceedings pending the intended appeal. The application was opposed on the grounds that no appeal was pending, that section 79G of the Civil Procedure Act presupposes a filed appeal, and that insufficient reasons for the delay were given. Applying the principles in Nicholas Kiptoo Arap Korir Salat v IEBC and the Global Tours and Travels stay principles, the court found the delay not inordinate: certified proceedings were only ready on 26 October 2021, the original Applicant died on 4 October 2021, and the application was filed on 11 November 2021. The Respondent also demonstrated no prejudice. The court granted leave to file the appeal within 14 days, stayed the proceedings in CMELC Case No. 281 of 2018 pending the appeal, and ordered the Applicants to bear the costs of the application. The substitution relief sought was not expressly dealt with in the final orders.

Key legal issues

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01

Whether the Applicants were granted leave to appeal out of time under section 79G of the Civil Procedure Act

Holding

Yes - the delay was not inordinate, being explained by the time taken to obtain certified proceedings (ready only on 26 October 2021) and the death of the original Applicant, and no prejudice to the Respondent was demonstrated

Reasoning

The court applied the Salat principles on extension of time. A certificate of delay showed the proceedings were not ready until 26 October 2021; the original Applicant died on 4 October 2021 and the application was filed on 11 November 2021. Considering the period from when proceedings were ready to the filing date, the delay was not inordinate, and the Respondent showed no prejudice.

p. 2
02

Whether proceedings in CMELC Case No. 281 of 2018 should be stayed pending appeal

Holding

Yes - the court, applying the Global Tours and Travels principles, stayed the proceedings pending hearing and determination of the intended appeal

Reasoning

Counsel relied on the Ringera principles that a stay of proceedings is a discretionary remedy exercised in the interest of justice, weighing expeditious disposal, arguability of the intended appeal, judicial time and expedition of the application. The court was persuaded the application was merited and stayed the proceedings.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available to a deserving party at the discretion of the Court, and the applicant bears the burden of laying a basis for it
  • Whether to grant a stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice, weighing factors such as expeditious disposal, arguability of the intended appeal and whether the application was brought expeditiously

Court orders

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  1. 1.The Applicant is granted leave to file an appeal out of time, to be filed within 14 days from the date of the ruling
  2. 2.The proceedings in CMELC Case No. 281 of 2018 are stayed pending the hearing and determination of the appeal
  3. 3.The costs of the application shall be borne by the Applicant

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (2)

  • Global Tours and Travels Limited, Nairobi Winding Up Cause No. 43 of 2000
  • Nicholas Kiptoo Arap Korir Salat v IEBC
    (2014) eKLR
On appeal from
Chief Magistrate's Court (ELC) at Kisii
CMELC Case No. 281 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal out of time)

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, "Evans Monari (Suing as the legal representative of the estate of the late George Hudson Monari Ogeto) v Moraa Mosoti;Kennedy Monari & 2 others(Suing as the legal representatives of the estate of the late George Hudson Monari Ogeto)(Intended Substitutes/Applicants) [2022] KEELC 1008 (KLR)", Case Analysis (2022). Notice of Motion dated 8th November 2021 (arising from CMELC Case No. 281 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1008/eng@2022-03-08

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