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ELCAllowedNot stated in the judgment· [2022] KEELC 3702 (KLR)

Waithaka v Waititu (Environment and Land Appeal 52 of 2020) [2022] KEELC 3702 (KLR)

High Court of Kenya
5 May 2022
923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the High Court at Thika (J G Kemei J) determined an unopposed notice of motion dated January 31, 2022 by the respondent, Felistus Wanjiku Waititu, in an appeal against the judgment in Thika MCL&E No 117 of 2019. She sought certification that the stay/status quo orders granted on June 10, 2021 and issued on November 19, 2021 had lapsed, and striking out of the record of appeal dated August 11, 2021 and filed August 27, 2021, with costs. The court noted as a housekeeping matter that the respondent's incoming firm appeared not to be properly on record under Order 9 rule 9 of the Civil Procedure Rules, but proceeded with the application. On the merits, the court found that Gacheru J's order of June 10, 2021 had granted stay on condition that the record of appeal be filed within 45 days, failing which the stay would automatically lapse. The appellant never sought extension of time and filed the record 77 days after the order. Those orders were self-executory and therefore lapsed automatically. Further, the appellant's application of January 25, 2022 for leave to file a supplementary record of appeal could not succeed because a supplementary record cannot stand where the primary record was improperly filed. The court allowed the application, certified the lapse of the stay orders, struck out the record of appeal, and awarded costs to the applicant.

Key legal issues

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01

Lapse of self-executory conditional stay orders

Holding

The status quo orders lapsed automatically when the appellant failed to file the record of appeal within 45 days as directed, without seeking extension of time.

Reasoning

The order of June 10, 2021 by Gacheru J directed the appellant to file his record of appeal within 45 days failing which the stay would automatically lapse. The record was filed 77 days later on August 27, 2021, with no extension sought. Such orders are self-executory, so no formal application to declare lapse was strictly necessary.

p. 2
02

Striking out of a record of appeal filed out of time

Holding

Having been filed out of time without extension, the record of appeal was not properly before the court and was struck out.

Reasoning

The court found there was no substantive record of appeal or supplementary record properly on file. The court's discretion to allow late filing can only be exercised where the initially filed documents are properly before the court; since the record itself was out of time, it could not be salvaged and the supplementary record could not stand independently.

p. 2
03

Change of advocates after judgment under Order 9 rule 9

Holding

The court noted there was no evidence that the incoming firm of Milimo Muthomi & Co Advocates was properly on record, but proceeded to determine the application nonetheless.

Reasoning

Order 9 rule 9 requires a change of advocate after judgment to be effected by court order or consent of the outgoing and incoming advocates. The record showed a notice of change of advocates dated November 24, 2021 but no such order or consent, so the firm was not shown to be properly before the court.

p. 2

Legal principles established

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  • Where conditional stay orders are self-executory and the condition (filing the record of appeal within 45 days) is breached without extension of time, the stay orders lapse automatically.
  • A supplementary record of appeal cannot stand on its own where the primary record of appeal was not properly before the court.

Court orders

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  1. 1.Certification that the stay/status quo orders given on June 10, 2021 and issued on November 19, 2021 have lapsed
  2. 2.Striking out of the record of appeal dated August 11, 2021 and filed on August 27, 2021
  3. 3.Costs of the application awarded to the applicant/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
On appeal from
Thika Magistrates' Court
MCL&E No 117 of 2019
Jurisdiction invoked
Appellate jurisdiction over the trial court judgment in Thika MCL&E No 117 of 2019; the application was brought under the Civil Procedure Rules, including Order 9 rule 9

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, "Waithaka v Waititu (Environment and Land Appeal 52 of 2020) [2022] KEELC 3702 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3702/eng@2022-05-05

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