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ELCDismissedMisc. Application No 34 of 2021· [2022] KEELC 1168 (KLR)

Mbaraka Hamadi Muyongo v Mark Radoli & another [2022] KEELC 1168 (KLR)

Environment and Land Court
22 February 2022
LNL. L. Naikuni
2,419 words in judgment
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The bottom line

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A Mombasa court refused to pause a land judgment because the applicant showed no loss, offered no security, and delayed six months without a good excuse.

What this practically means

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Executive summary

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The Applicant, Mbaraka Hamadi Muyongo, moved the Environment and Land Court at Mombasa by a Notice of Motion dated 24th September 2021 under Section 7 of the Appellate Jurisdiction Act and Orders 42, 50 and 51 of the Civil Procedure Rules, 2010. He sought a stay of execution of the magistrates' court judgment/decree of 26th March 2021, a temporary injunction protecting his possession of subdivision No. 6424 and No. 6425 (Original Plot No. 1279/1 and /2 Section 1/MN), leave to file his memorandum of appeal out of time, and a declaration of proprietary interest over the suit property. He blamed his six-month delay on the trial court's failure to issue a judgment notice. The 2nd Respondent opposed, showing that judgment dates of 12th, 19th and 26th March 2021 were announced in open court and that the Applicant and his counsel attended none of those sessions, and that the application came six months after judgment. Justice L. L. Naikuni identified two issues: the threshold for stay of execution and leave to appeal out of time. Applying Order 42 Rule 6, the court found the Applicant had proved no substantial loss, had not offered security - a stand-alone fatal lapse - and had moved after unreasonable delay. The explanation for the six-month delay was found inexcusable, counsel having failed to follow up the file. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the threshold for stay of execution pending appeal was met

Holding

Not met - no substantial loss demonstrated, application made after unreasonable delay, and no security offered

Reasoning

Order 42 rule 6 requires substantial loss, absence of unreasonable delay, and security for due performance of the decree. The applicant tendered no documentary or other evidence of substantial loss, and never mentioned security at all, which alone was a major lapse dooming the application.

p. 3
02

Whether leave should issue to file the memorandum of appeal out of time

Holding

Refused - the six-month delay was inordinate and the explanation that judgment was delivered in the applicant's absence was inexcusable

Reasoning

Judgment dates were taken in open court (12th, 19th and 26th March 2021) and the applicant and his counsel attended none of the sessions. Counsel should have regularly perused the court file. Extension of time is an equitable remedy available only to a deserving party who explains the delay satisfactorily.

p. 3

Legal principles established

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  • The three conditions for stay of execution under Order 42 Rule 6 are cumulative and share an inextricable bond
  • A successful party must be allowed to enjoy the fruits of judgment unless substantial loss is proven
  • An applicant for extension of time must give a plausible explanation for the delay
  • It is the responsibility of a party (and counsel on record) to follow up on the status of their case

Court orders

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  1. 1.The Notice of Motion application dated 24th September 2021 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (4)

  • Nicholas Kiptoo Arap Salat v IEBC & 7 others
    (2014) eKLR
  • Kenya Alliance Insurance Co. Ltd v Juliuis Rem Mutabari
    (2018) eKLR
  • Tabro Transporters Limited v Absalom Dova Lumbasi
    (2012) eKLR
  • Aviation Cargo Support Limited v St. Mark Freight Services Limited
    (2014) eKLR
On appeal from
Magistrates' Court
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Mbaraka Hamadi Muyongo v Mark Radoli & another [2022] KEELC 1168 (KLR)", Case Analysis (2022). Misc. Application No 34 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1168/eng@2022-02-22

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