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ELCAllowedMiscellaneous Application E004 of 2022· [2022] KEELC 12653 (KLR)

Kariankei v Nkoitiko

Environment and Land Court
27 September 2022
3,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant moved the Environment and Land Court at Narok by notice of motion under Order 51 rules 1 and 3 and Order 42 of the Civil Procedure Rules and sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, seeking enlargement of time to file an appeal out of time against the judgment of Hon George Wakahiu, CM in Narok CM ELC No 59 of 2018 delivered on April 13, 2022, dismissing his suit, together with stay of execution. The applicant explained that judgment was delivered without notice to his advocate, after the trial court had twice indicated on the online portal that judgment was not ready, and that the original file was only returned to the registry on May 18, 2022. He further deposed that the suit property was his matrimonial home and sole source of livelihood, and that the respondent had attempted eviction through the Deputy County Commissioner despite interim stay orders. The respondent opposed, alleging inordinate delay, indolence since the suit was first filed in 2010, and asserting no imminent risk of eviction given his long residence on the land. The court held the delay was not inordinate and the reason excusable, that merits of the intended appeal were not for determination at that stage but the draft memorandum showed the appeal was not frivolous, and that although the non-monetary judgment could not be rendered nugatory, fairness required the applicant be heard on appeal. The court allowed leave to appeal out of time with seven days to file and serve the memorandum of appeal, and granted stay of execution until the intended appeal is filed, heard and determined, conditioned on the applicant paying the costs of the application assessed at Kshs 12,000/-, failing which the stay lapses.

Key legal issues

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01

Whether the delay in filing the application for extension of time was inordinate and excusable

Holding

The delay was not inordinate; the reason for delay was excusable

Reasoning

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.

p. 4
02

Whether the intended appeal is arguable

Holding

The court need not decide chances of success at this stage; the draft memorandum shows the appeal is not frivolous

Reasoning

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.

p. 4
03

Whether stay of execution pending the intended appeal should be granted

Holding

Stay granted, conditioned on payment of assessed costs

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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

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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, "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.