Kisusya v Kisusya (Environment and Land Miscellaneous Application 1 of 2021) [2022] KEELC 2792 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution can issue where the decree has been executed and title transferred
Stay cannot be granted; it has been overtaken by events and substantial loss was not demonstrated.
The court found on the evidence that the decree in the trial court had been executed and the suit land transferred to the respondent, evidenced by a title deed. Citing Kaushik Panchamatia v Prime Bank, the court held that ordering stay in such circumstances would be an order in vain and in the exercise of the court's mandate in futility. It also found the applicant had not shown substantial loss or that the respondent could not refund costs if the appeal succeeded.
Whether the applicant's statutory and procedural bases (section 7 Appellate Jurisdiction Act and Order 22 CPR) applied
Neither applied to these proceedings.
The court held that section 7 of the Appellate Jurisdiction Act applies to appeals to the Court of Appeal, not this appeal. Order 22 rule 22 applies where a decree has been sent to the court for execution, which was not the case here. The application therefore rested on the court's power to grant leave to appeal out of time under section 79G and Article 159(2)(d) of the Constitution.
Whether extension of time to file and serve the memorandum of appeal should be granted
Granted, as the delay of one and a half years fell during the COVID-19 pandemic and the interests of justice favour hearing the applicant on merit.
Although the delay of one and a half years was on its face long and unreasonable, the court took into account that the period coincided with the COVID-19 pandemic and its unexpected challenges. Guided by the overriding objective and Article 159(2)(d) against undue regard to procedural technicalities, the court found it just to give the applicant an opportunity to ventilate the intended appeal on merit.
Legal principles established
#- A stay of execution cannot be granted where the decree has already been executed, as such an order would be made in vain and in the exercise of the court's mandate in futility.
- The conditions for stay of execution under Order 42 rule 6(2) are substantial loss, application made without unreasonable delay, and security for due performance of the decree.
- In applications for extension of time, the court considers the period of delay, the reasons for the delay, the degree of prejudice to the respondent, and whether the matter raises issues of public importance.
- Extension of time under section 79G requires good and sufficient cause for not filing the appeal in time.
Court orders
#- 1.Prayer 2 of the application dated December 15, 2021 (stay of execution) is dismissed for lack of merit
- 2.Leave granted to the applicant to file an appeal out of time against the ruling of the Senior Resident Magistrate's Court at Mwingi delivered on May 26, 2020 in ELC No. 6 of 2018
- 3.The appeal shall be filed within 14 days from the date of the ruling
- 4.Costs of the application shall abide the outcome of the intended appeal
- On appeal from
- Senior Resident Magistrate's Court at Mwingi
- ELC No. 6 of 2018
- Jurisdiction invoked
- Section 7 of the Appellate Jurisdiction Act, Order 22 and Order 42 of the Civil Procedure Rules, Section 79G of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisusya v Kisusya (Environment and Land Miscellaneous Application 1 of 2021) [2022] KEELC 2792 (KLR)", Case Analysis (2022). ELC Appeal from Chief Magistrate Court Case No. 6 of 2018 (Mwingi Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2792/eng@2022-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.