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ELCDismissednot stated in the extract (petition/application dated 11.8.2020)· [2022] KEELC 1421 (KLR)

Isaiah Mbaabu & 2 others v Land Adjudication & Settlement Officer Igembe South District & 4 others [2022] KEELC 1421 (KLR)

Environment and Land Court
16 February 2022
3,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru dismissed an application to appeal late and halt a land adjudication ruling, ruling Covid-19 delays were no excuse.

What this practically means

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Executive summary

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The applicants sought a stay of execution of a judgment delivered on 14.7.2020 dismissing their petition challenging a land adjudication process, together with leave to appeal out of time. They blamed a 27-day delay on their elderly, sickly status and Covid-19 travel restrictions, claiming they needed to meet counsel physically, and alleged substantial loss and possible eviction from ancestral land. The 1st and 2nd respondents opposed, invoking Order 42 Rule 6, absence of security, and public interest in completing adjudication under intergenerational equity. The 3rd to 5th respondents and interested parties said the adjudication was complete with over 816 beneficiaries issued parcel numbers, rendering the application academic. The court framed two issues: entitlement to leave to appeal out of time, and entitlement to stay. It held the delay was not satisfactorily explained because courts operated a hybrid system allowing electronic instructions, and the supporting affidavit carried no authority to sue on behalf of co-applicants and clans, echoing the earlier finding that the petitioners lacked capacity. On stay, the court found only a negative order - dismissal with costs - had been issued, which cannot be stayed; no assessed costs or execution were shown. The applicants' adjudication participation rights under Cap 284 and 283 remained. The application dated 11.8.2020 was dismissed with costs and all existing orders vacated.

Key legal issues

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01

Whether sufficient cause was shown for the 27-day delay in filing the appeal

Holding

No - Covid-19 travel restrictions were not a good reason since the courts worked on a hybrid system and instructions could be relayed electronically; additionally the applicants lacked authority to act for the co-applicants and clans

Reasoning

The court found the applicants never alleged ignorance of the judgment or outcome, and their advocates never claimed they could not reach them. The court had already operated by written submissions and electronic delivery, and the petitioners had failed to appear even for a physical hearing. The supporting affidavit also carried no authority to sue on behalf of the clans, undermining the entire application, consistent with the earlier finding that the petitioners lacked capacity.

p. 4
02

Whether a stay of execution should issue

Holding

No - the judgment merely dismissed the petition, producing a negative order incapable of being stayed, and no assessed costs or execution were demonstrated

Reasoning

The court noted no material showed that costs had been assessed or execution commenced, and the respondents filed no cross-petition attracting positive orders. Following Abdulrahman C. Kirao v Said Seif, negative orders cannot be stayed. Substantial loss was also not demonstrated, as demarcation was complete and the applicants' participation rights under the adjudication statutes remained intact.

p. 4

Legal principles established

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  • Extension of time is an equitable remedy, not a right, available only to a deserving party who lays a basis to the satisfaction of the court, with public interest a core consideration
  • Negative orders cannot be stayed because there is nothing to stay
  • A representative applicant must attach authority to sue and institute proceedings on behalf of those represented

Court orders

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  1. 1.The application dated 11.8.2020 is dismissed with costs
  2. 2.Any existing orders are hereby vacated

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of Kenya 2010Article 159(2)
  • Constitution of Kenya 2010Article 258
  • Constitution of Kenya 2010Article 40
  • Land Adjudication Act (Cap 284)not specified
  • Cap 283not specified

Cases cited (18)

  • Thuita Mwangi –vs- Kenya Airways Ltd
    [2003] eKLR
  • Morris Odhiambo Ouma –vs- Peter Mwaga Ombura
    [2019] eKLR
  • Victory Construction –vs- BM
    [2019] eKLR
  • Vishram Ravji Halai vs. Thornton & Turpin
  • Kenya National Highways Authority –vs- Ahmednasir Maalim Abdullahi
    [2020]
  • Century Oil Trading Co. Ltd. -vs- Kenya Shell Ltd
    eKLR
  • Samvir Trustees Limited –vs- Guardian Bank Limited
    (2000) JELR
  • Kenya Shell Ltd –vs- Kibiru & Another
    [1986] KLR 410
  • County Government of Meru & Another –vs- District Land Adjudication & Settlement Officer Tigania East Sub-County & 18 Others
    [2018] eKLR
  • Peter K. Waweru –vs- Republic
    [2006] eKLR
  • Njuguna –vs- Magichu & 73 Others
    [2003] KLR 507
  • Antoine Ndiaye –vs- African Virtual University
    [2015] eKLR
  • Machira T/A Machira & Co. Advocates –vs- E.A Standard
    [2002] 1 KLR 63
  • Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Mohamed Bwana Obo Athman & 24 Others –vs- Kenya Airports Authority
    [2014] eKLR
  • Communication Workers Union & Another –vs- Communication Authority of Kenya
    [2015] eKLR
  • James Ndugi & 4 others –vs- Jamleck Waithaka Kinyua & 7 others
    [2021] eKLR
  • Abdulrahman C. Kirao & 3 others –vs- Said Seif & 3 others
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the notice of motion; applicants invoke Article 159(2) of the Constitution; capacity questions tied to Article 258 of the Constitution

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, "Isaiah Mbaabu & 2 others v Land Adjudication & Settlement Officer Igembe South District & 4 others [2022] KEELC 1421 (KLR)", Case Analysis (2022). not stated in the extract (petition/application dated 11.8.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1421/eng@2022-02-16

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