Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Cause No. 93 of 2019 - Malindi· [2022] KEELC 1266 (KLR)

Abdalla Chogo Mzingo v John Nzaka {Deceased} & another [2022] KEELC 1266 (KLR)

Environment and Land Court
22 February 2022
1,628 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

#

The Malindi Environment and Land Court refused to halt execution of its earlier ruling but gave the losing party 14 days to lodge an appeal out of time.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined an application dated 12th August 2021 by the Defendant seeking a stay of execution of the ruling and orders delivered in the same cause on 30th April 2021, and leave to file an appeal out of time against part of that ruling. The Defendant contended he only became aware of the ruling on 28th July 2021 when served with the orders, by which time the period for filing a notice of appeal had lapsed; he further argued the intended appeal had high chances of success because the court had quashed a decision of the Minister under the Land Adjudication Act although that was not a final prayer in the Plaint. The Plaintiff opposed, citing inordinate delay and prejudice, and asserting the property had been awarded to him by the Provincial Appeals Committee in Appeal Case No. 14 of 1997 and in HCCC No. 143 of 2003. The court found the stay limb unargued and failing the threshold for stay. On extension of time, it applied the Supreme Court principles in County Executive of Kisumu and the Court of Appeal decision in Vishva Stone Suppliers, holding the roughly three-month delay was not inordinate given that the ruling was delivered by notice. The application for stay was dismissed as without merit, but the Defendant was granted leave to file the appeal out of time within 14 days, failing which the leave lapses.

Key legal issues

#
01

Whether the delay of about three months in seeking leave to appeal out of time was inordinate

Holding

The delay was not inordinate, taking into account the nature of delivery of the ruling vide notice

Reasoning

The application was filed three months after the ruling was delivered. Relying on Almas Hauliers Ltd v Abdulnasir Abukar Hassan where a four-month delay was held not inordinate, the court held that delay is measured case by case, and considering that the ruling was delivered by notice (the Applicant only became aware on 28th July 2021 when served), the three-month delay was not inordinate.

p. 3
02

Whether the Applicant satisfied the principles for extension of time

Holding

The Applicant was granted leave to appeal out of time within 14 days

Reasoning

The court applied the Supreme Court principles in County Executive of Kisumu v County Government of Kisumu and the Court of Appeal principles in Vishva Stone Suppliers v RSR Stone, noting that extension of time is an equitable discretionary remedy, that the delay must be satisfactorily explained, and that the Applicant, having become aware of the ruling only upon service of the orders, filed the application expeditiously.

p. 3

Legal principles established

#
  • An appeal against an order not listed under Order 43 Rule 1 lies only with leave, which must be sought at the time the order is made or within fourteen days
  • Whether a delay is inordinate depends on the circumstances of each case; even a few days may be inordinate while a year may not

Court orders

#
  1. 1.Application for stay of execution of the ruling dated 30th April 2021 dismissed for lack of merit
  2. 2.Applicant granted leave to file an Appeal out of time within 14 days, failing which the leave lapses

Authorities

#

Legislation

  • Appellate Jurisdiction ActSection 7
  • Civil Procedure Rules, 2010Order 43 Rules 1 and 2
  • Land Adjudication Actnot specified

Cases cited (7)

  • J.P. Machira t/a Machira & Company Advocates v Wangethi Mwangi & another
    [2002] eKLR
  • Peter Adams Ludavaa v Housing Finance Co. of Kenya Ltd
    [2021] eKLR
  • George Ireri Mukindia t/a Gim Fresh v K-Rep Bank Limited
    [2015] eKLR
  • County Executive of Kisumu vs County Government of Kisumu & others
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others
    Application No. 16 of 2014 [2014] eKLR
  • Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited
    [2020] eKLR
  • Almas Hauliers Ltd v Abdulnasir Abukar Hassan
    [2017] eKLR
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya and Order 43 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdalla Chogo Mzingo v John Nzaka {Deceased} & another [2022] KEELC 1266 (KLR)", Case Analysis (2022). ELC Cause No. 93 of 2019 - Malindi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1266/eng@2022-02-22

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