Kariankei v Nkoitiko
The bottom line
#Kenya's Environment and Land Court allowed a late land appeal and stopped execution, but only on condition the appellant pay Kshs 12,000 in costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the application for extension of time was inordinate and excusable
The delay was not inordinate; the reason for delay was excusable
Judgment was delivered on April 13, 2022 but counsel only learned of it on April 18, 2022 upon enquiry, and the original file was only returned to the registry on May 18, 2022. The court found the delay excusable and not so inordinate as to deny the applicant the right to appeal.
Whether the intended appeal is arguable
The court need not decide chances of success at this stage; the draft memorandum shows the appeal is not frivolous
The court held that merits of the intended appeal are not for determination at the extension-of-time stage. From the draft memorandum of appeal annexed, the appeal was not frivolous on its face, and both parties would have the opportunity to argue merits once the appeal was filed.
Whether stay of execution pending the intended appeal should be granted
Stay granted, conditioned on payment of assessed costs
The judgment was non-monetary, no execution proceedings had commenced, and the applicant deposed the suit property was his source of livelihood and matrimonial home. Mindful of the applicant's right to be heard on appeal, the court granted stay conditioned on payment of Kshs 12,000/- costs, with the appeal to be fast-tracked.
Legal principles established
#- An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time
- Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance of the decree
Court orders
#- 1.Leave granted to the applicant to file an appeal out of time against the judgment in Narok CM ELC No 59 of 2018 delivered on April 13, 2022
- 2.Applicant granted seven days from the date of the order to file and serve the memorandum of appeal together with the order granting leave
- 3.Stay of execution of judgment in Narok ELC Case No 59 of 2018 granted until the intended appeal is filed, heard and determined, on condition that the applicant meets the costs of the application assessed at Kshs 12,000/-, failing which the stay lapses
- On appeal from
- Chief Magistrate's Court at Narok
- Narok CM ELC No 59 of 2018
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act and Order 51 rule 1 & 3 and Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariankei v Nkoitiko", Case Analysis (2022). Miscellaneous Application E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12653/eng@2022-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.