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ELCAllowedApplication dated 18th January 2021 (arising from Milimani Commercial Court CMCC No. 4922 of 2019)· [2022] KEELC 1371 (KLR)

Gakuya Kibathi v Nicholas Karani Gichohi & another [2022] KEELC 1371 (KLR)

High Court of Kenya
17 February 2022
2,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan judge gave a landowner extra time to appeal and froze execution of a judgment transferring 2.7 acres, in exchange for security.

What this practically means

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Executive summary

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The Applicant, who had been sued in the lower court as administrator of the estate of Joseph Kibathi Kariuki (deceased), applied by Notice of Motion dated 18th January 2021 for two principal reliefs: extension of time to file an appeal out of time against the judgment of Hon. P. Ngare Gesora (Mr.) CM delivered on 30th April 2020 in Milimani CMCC No. 4922 of 2019, and stay of execution of that judgment pending the intended appeal. The lower court had declared the 2nd Respondent's transfer of a 2.7-acre portion of NAIROBI/BLOCK/126/32 unlawful and fraudulent and ordered transfer to the 1st Respondent, who now sought to execute. The 1st Respondent opposed, contending the delay of over nine months was inordinate and unexplained, citing Jaber Mohsen Ali v Priscillah Boit. Guided by Section 79G of the Civil Procedure Act, Order 42 Rule 6, Bagajo v Christian Children Fund, Salat v IEBC and Kenya Shell v Karuga, S. Okong'o J found the delay explained by the pendency of the stay and change-of-advocates application (determined 25th September 2020) and the late supply of certified proceedings (6th January 2021), held the appeal arguable, found no prejudice to the Respondent, and found substantial loss since the Applicant would lose the land pending appeal. The court allowed the application, staying execution, issuing an inhibition and injunction to preserve the property, requiring security of Kshs. 500,000/= within 45 days, extending time to 28th February 2022, and directing each party to bear its own costs.

Key legal issues

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01

Extension of time to file appeal out of time under Section 79G

Holding

Extension granted; the delay was sufficiently explained by the pending stay/change-of-advocates application and delayed supply of certified proceedings

Reasoning

Soon after judgment the Applicant applied for stay and leave to change advocates; the ruling came only on 25th September 2020, and certified copies of proceedings were supplied only on 6th January 2021, both after the 30-day period in Section 79G had lapsed. The intended appeal was found arguable and the Respondent showed no prejudice.

p. 3
02

Stay of execution pending appeal under Order 42 Rule 6

Holding

Stay granted; substantial loss established because the Applicant would lose a 2.7-acre portion of the suit property before the appeal is heard

Reasoning

The lower court declared the 1st Respondent lawful owner of a 2.7-acre portion and ordered transfer; once transferred, the Respondent could dispose of it pending appeal, rendering the appeal nugatory. Delay in bringing the stay application was acknowledged but found explained.

p. 3

Legal principles established

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  • Extension of time is an equitable remedy requiring explanation of delay, arguability of the appeal and absence of prejudice to the respondent
  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution
  • Where a judgment orders transfer of land, the applicant risks losing the property pending appeal unless stay is granted

Court orders

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  1. 1.Stay of execution of the judgment delivered on 30th April 2020 by Hon. P. Ngare Gesora (Mr.) CM in Milimani Chief Magistrate's Court Civil Case No. 4922 of 2019 and consequential orders pending filing, hearing and determination of the intended appeal
  2. 2.Inhibition against registration of any other or further dealings with NAIROBI/BLOCK126/32 pending the intended appeal
  3. 3.Injunction restraining the Applicant from subdividing, selling or carrying out further developments on NAIROBI/BLOCK126/32 pending the intended appeal
  4. 4.Applicant to deposit Kshs. 500,000/= in an interest-earning joint account of both advocates' names within 45 days, failing which stay and inhibition lapse automatically
  5. 5.Time for filing the intended appeal extended up to and including 28th February 2022
  6. 6.Appeal to be filed in a separate appeal file and not in this file
  7. 7.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (4)

  • Bagajo v Christian Children Fund
    [2004] 2 KLR 73
  • Nicholas Kiptoo Arap Korir Salat v IEBC and 7 Others
    [2014] eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
On appeal from
Chief Magistrate's Court, Milimani Commercial Courts
CMCC No. 4922 of 2019
Jurisdiction invoked
Sections 79G and Order 42 Rule 6 of the Civil Procedure Act Cap. 21 and Civil Procedure Rules (appeal from subordinate court; extension of time and stay of execution)

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, "Gakuya Kibathi v Nicholas Karani Gichohi & another [2022] KEELC 1371 (KLR)", Case Analysis (2022). Application dated 18th January 2021 (arising from Milimani Commercial Court CMCC No. 4922 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1371/eng@2022-02-17

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