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ELCAllowedNot stated in the judgment

Ochieng (Suing in her Capacity as Administrator Of The Estate of Cornel Onyango Ochieng (Deceased)) v Kinyanjui (Miscellaneous Civil Application 47 of 2021) [2022] KEELC 2297 (KLR)

Environment and Land Court
18 May 2022
5,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court granted a deceased estate's administrator extra time and stay of execution, blocking transfer of disputed land pending appeal.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Naikuni J) on two Notices of Motion dated 11th and 16th November 2021 brought by Joan Mercy Anyango Onyango, legal administrator of the estate of the late Connel Onyango Ochieng. She sought leave to appeal out of time against the judgment of Hon. G. Kiage delivered on 21st May 2021, which ordered vacant possession of the suit property, together with a stay of execution pending the intended appeal. The Respondent (through advocate Cecilia Mango) opposed both applications, arguing there was inordinate and inexcusable delay of five months, that no appeal lay, that no security had been offered, and that vacant possession had already been given to the Respondent following eviction. After framing three issues - the thresholds for extension of time and stay, entitlement to the orders sought, and costs - the court held that the delay was largely caused by court bureaucracies in producing typed proceedings and issuing letters of administration, and that such delay should not be visited upon the applicant. Invoking the overriding objective under Articles 159(1) and (2) of the Constitution, Section 95 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, the court allowed both applications. It granted the applicant sixty days to compile, file and serve the memorandum and record of appeal, directed the Land Registrar, Mombasa to register an inhibition over the suit property under Section 68 of the Land Registration Act to preserve it pending appeal, and ordered costs to be in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the two Notices of Motion applications filed by the Applicant meet the thresholds of law to be granted on the extension of time and stay of execution of the lower Court Judgment pending the hearing and final determination of the appeal
  2. 2.Whether the parties are entitled to the orders sought
  3. 3.Who will bear costs of the filed applications

Key legal issues

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01

Whether the threshold for extension of time to appeal out of time was met

Holding

The court found the applicant had provided weighty reasons for the delay, including the lapse of the statutory 30-day period while obtaining letters of administration and waiting for typed proceedings, and enlarged the time under Section 95 of the Civil Procedure Act and Order 50 Rule 6.

Reasoning

The court held the powers under Section 95 of the Civil Procedure Act and Order 50 Rule 6 are discretionary. It took judicial notice that the disputed property involves the deceased's family, found the delay was largely caused by court bureaucracies in producing proceedings and issuing letters of administration, and applied the overriding objective under Articles 159(1) and (2) of the Constitution, Sections 3 and 13 of the Environment and Land Court Act, Section 150 of the Land Act and Section 101 of the Land Registration Act, holding the respondent would suffer no prejudice.

p. 8
02

Whether the conditions for stay of execution pending appeal under Order 42 Rule 6 were satisfied

Holding

The court found the applications competent and meritorious, holding substantial loss may occur if stay is not granted, and granted a 60-day stay coupled with an inhibition to preserve the suit property.

Reasoning

The court reiterated that an applicant for stay must show substantial loss, absence of unreasonable delay and offer of security. It relied on authority that the right of appeal must be balanced against the successful litigant's right to enjoy the fruits of judgment, and that stay preserves the subject matter so a successful appeal is not rendered nugatory. Although acknowledging the motions were filed with unreasonable delay, it held the cogent reasons justified enlarging time and allowing the stay in the interest of justice.

p. 10
03

Costs of the applications

Holding

Although the applicant succeeded, the court ordered costs to be in the cause.

Reasoning

Applying Section 27(1) of the Civil Procedure Act, that costs follow the events, the court noted the applicant succeeded in obtaining the orders prayed for and would ordinarily be entitled to costs. However, for good order, it directed that costs be in the cause.

p. 10

Legal principles established

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  • The purpose of stay pending appeal is to preserve the substratum of the case, especially in land matters where the character of the suit property may be changed while the appeal is pending.
  • Delay occasioned by court bureaucracy in producing typed proceedings or issuing letters of administration should not be visited upon an applicant seeking extension of time.

Court orders

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  1. 1.The two Notices of Motion applications dated 11th and 16th November 2021 be and are hereby allowed
  2. 2.The Applicant be and is hereby granted Sixty (60) days stay of execution to compile, file and serve the Memorandum of Appeal and/or the Records of Appeal, failure to which the order automatically lapses
  3. 3.In order to preserve the suit property pending the hearing and final determination of the Appeal, the Land Registrar, Mombasa to register an inhibition pursuant to Section 68 (1)(2) and (3) of the Land Registration Act, No. 3 of 2012 and Regulation 79 (1), (2) and (3) of the Land Regulation Unit, 2017, to be facilitated and undertaken by the Applicant/Appellant
  4. 4.The costs of the applications will be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court, Mombasa
Not stated
Jurisdiction invoked
Sections 1A & B, 3A, 79G and 95 of the Civil Procedure Act, Cap. 21; Order 42 Rule 6, Order 50 Rule 6, Order 51 Rule 1 and Order 52 Rule 3 of the Civil Procedure Rules, 2010; Articles 159(1) and (2) of the Constitution of Kenya, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the two Notices of Motion applications dated 11th and 16 November 2021 be and are hereby allowed.
Disposition - allowance of both applications
That the Applicant be and is hereby granted Sixty (60) days stay of execution to compile, file and serve the Memorandum of Appeal and/or the Records of Appeal failure to which the order automatically lapse.
Stay of execution granted for 60 days
In order to preserve the suit property pending the hearing and final determination of the Appeal, the Land Registrar, Mombasa to register an inhibition Pursuant to the provisions of Section 68 (1) (2) and (3) of the Land Registration Act, No. 3 of 2012 and Regulation 79 (1), (2) and (3) of the Land Regulation Unit, 2017 to be facilitated and undertaken by the Applicant/ Appellant herein.
p. 11Registration of inhibition to preserve the suit property
That the costs of the applications will be in the cause.
Costs order
The purpose of stay pending appeal is to preserve the substratum of the case especially in land matters where the character of the suit property may be changed while the appeal is pending.
p. 9Purpose of stay of execution pending appeal
In other words, the main cause of the delay in moving court was caused largely by bureaucracies of the Honorable Court and which should not be visited upon the Applicant.
p. 8Delay caused by court bureaucracy not attributable to the applicant

Issues in the judgment

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minor

Internal contradiction on delay: the court finds weighty and reasonable grounds for the delay, yet later states the motions were filed with unreasonable delay.

minor

Inconsistent naming of the applicant within the judgment: the supporting affidavit is described as that of 'Joan Mercy Anyango Onyango' in the first application but 'Joan Anyango Ochieng' in the second.

minor

The deponent of the Respondent's replying affidavit, Cecilia Mango, is also counsel for the Respondent and appears in the coram as advocate for the Respondent.

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, "Ochieng (Suing in her Capacity as Administrator Of The Estate of Cornel Onyango Ochieng (Deceased)) v Kinyanjui (Miscellaneous Civil Application 47 of 2021) [2022] KEELC 2297 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2297/eng@2022-05-18

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