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ELCPartially AllowedNotice of Motion dated 22nd September 2020 (ELC Appeal from SPMCC ELC No. 7 of 2018, Mwingi)· [2022] KEELC 1887 (KLR)

John Muthia Kathunzi v Christine Sofia Peter [2022] KEELC 1887 (KLR)

Environment and Land Court
27 January 2022
3,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The court allowed a late land appeal but refused to protect a man who had already been evicted because there was nothing left to stay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitui (L. G. Kimani, J) determined a Notice of Motion dated 22nd September 2020 by the Applicant, who had been the defendant in SPMCC ELC No. 7 of 2018, Mwingi, in which judgment was entered against him on 27th February 2020, declaring the Respondent owner of Plot No. 24 Kyome Market, Mui Location, ordering his eviction and dismissing his counter-claim. The Applicant sought conservatory orders restraining his eviction and interference with his occupation pending an intended appeal, and leave to file the appeal out of time, citing Covid-19 court closures and delay in obtaining the judgment. The Respondent opposed, deponing that the decree had already been executed by eviction on 11th July 2020 and that court services in Mwingi were never closed. The court identified two issues: extension of time and stay/conservatory relief. Applying the First American Bank criteria and the Supreme Court's principles in Salat, it found the delay of about seven months partly excused by the Covid-19 scaling down of court activities, the intended appeal not frivolous, and the Respondent not prejudiced since she retained possession; leave to appeal out of time was granted, with the appeal to be filed within 14 days. However, the conservatory relief was refused: the decree had been fully executed and nothing remained to stay, and the court could not restrain the Respondent from enjoying a valid judgment. Costs were awarded to the Respondent.

Key legal issues

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01

Extension of time to file appeal under Section 75G of the Civil Procedure Act

Holding

Leave to appeal out of time granted; the two-month unexplained post-judgment delay was held not inordinate in light of the Covid-19 scaling down of court activities, arguable grounds of appeal and absence of prejudice to the Respondent

Reasoning

The court applied the First American Bank criteria (explanation for delay, merits, prejudice) and the Supreme Court's Salat principles. Though the Applicant went to sleep after obtaining the certified judgment, the intended appeal was not frivolous, the Respondent retained possession of the suit property, and could be compensated in costs, so the discretion was exercised in the Applicant's favour.

p. 4
02

Whether conservatory orders / stay of execution pending appeal could issue

Holding

Refused, because the prayer sought conservatory orders rather than stay of execution, and the decree had already been fully executed by eviction of the Applicant

Reasoning

The court held the decree had been executed on 11th July 2020, leaving nothing to stay; the Respondent claims the property by a valid decree not overturned, set aside or stayed, and the court could not restrain her from enjoying a judgment in her favour.

p. 4

Legal principles established

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  • Where there is no explanation for delay, the court shall not grant indulgence; the burden lies on the party seeking extension of time
  • A valid judgment of court, unless overturned on appeal, remains enforceable

Court orders

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  1. 1.The applicant be and is granted leave to appeal out of time, the said appeal to be filed within 14 days from the date of the ruling
  2. 2.Prayer 2 of the application dated 22nd September (conservatory orders restraining eviction/interference) is dismissed
  3. 3.Costs awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 23
  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 50
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 75G
  • Civil Procedure Rules 2010Order 50 Rule 6
  • Civil Procedure Rules 2010Order 51
  • Civil Procedure Rules 2010Order 42 Rule 6(1)

Cases cited (12)

  • Paul Musili Wambua vs Attorney General and 2 others
    (2015) eKLR
  • Utalii Transport Co. Ltd & 3 others vs N.C. Bank & Another
    (2014) eKLR
  • Bhatt Vs Rent Restriction Tribunal
    (1982) KLR 417
  • Masisi Mwita vs Damaris Wanjiku Njeri
    Civil Appeal No. 107 of 2015, (2016) eKLR
  • Paul Kamura Kamunge vs John Peter Nganga
    (2019) eKLR
  • Guyo Wakal vs Straman EA Ltd.
    (2013) eKLR
  • Stephen Wanjohi vs Central Glass Industries Ltd.
    Nairobi HCC No. 6726 of 1991
  • First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others
    Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Velji Shahmad vs. Shamji Bros. and Popatlal Karman & Co.
    [1957] EA 438
  • Florence Nyaboke Macharu vs Mogere Amosi Ombui and 2 Others
    (2014) eKLR
On appeal from
Senior Principal Magistrate's Court, Mwingi
ELC No. 7 of 2018
Jurisdiction invoked
Articles 23 and 40 of the Constitution of Kenya 2010; Order 50 Rule 6 and Order 51 of the Civil Procedure Rules 2010; Section 3A of the Civil Procedure Act; Section 75G of the Civil Procedure Act

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, "John Muthia Kathunzi v Christine Sofia Peter [2022] KEELC 1887 (KLR)", Case Analysis (2022). Notice of Motion dated 22nd September 2020 (ELC Appeal from SPMCC ELC No. 7 of 2018, Mwingi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1887/eng@2022-01-27

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