Gakuya Kibathi v Nicholas Karani Gichohi & another [2022] KEELC 1371 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Extension of time to file appeal out of time under Section 79G
Extension granted; the delay was sufficiently explained by the pending stay/change-of-advocates application and delayed supply of certified proceedings
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.
Stay of execution pending appeal under Order 42 Rule 6
Stay granted; substantial loss established because the Applicant would lose a 2.7-acre portion of the suit property before the appeal is heard
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.
Legal principles established
#- 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
#- 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.Inhibition against registration of any other or further dealings with NAIROBI/BLOCK126/32 pending the intended appeal
- 3.Injunction restraining the Applicant from subdividing, selling or carrying out further developments on NAIROBI/BLOCK126/32 pending the intended appeal
- 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.Time for filing the intended appeal extended up to and including 28th February 2022
- 6.Appeal to be filed in a separate appeal file and not in this file
- 7.Each party to bear its own costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.