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ELCPartially AllowedEnvironment and Land Miscellaneous Application E101 of 2022· [2022] KEELC 12839 (KLR)

Masila v Mutungi & another; Mutungi (Interested Party)

Environment and Land Court
30 September 2022
LMLucy N. Mbugua
2,352 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court let a late land appeal proceed because it was filed on time in the wrong court, but refused to pause the original judgment.

What this practically means

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Executive summary

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The applicant, Elizabeth Kanini Masila, moved the Environment and Land Court by notice of motion dated June 20, 2022 seeking extension of time to lodge a memorandum and record of appeal, and a stay of execution of the judgment of the Chief Magistrate's Court at Nairobi (Milimani Commercial Civil Case No. 5447 of 2017) delivered on July 30, 2021. Her earlier appeal, HCCA No. E518 of 2021, had been filed on time in the High Court but was struck out on June 7, 2022 after a preliminary objection on jurisdiction succeeded, with directions that the appeal be filed in the ELC. The respondents, represented through the replying affidavit of the 2nd respondent, opposed, arguing the applicant had no locus over the suit properties registered in the 1st respondent's name, that her delay was self-inflicted, and that the interested party (her late father-in-law) was deceased with pending succession causes. The court framed two issues: extension of time and stay. Applying section 79G of the Civil Procedure Act and the Salat discretion principles, it found the applicant's explanation plausible - the appeal had been filed timeously but in the wrong forum - and granted leave to appeal out of time within 14 days, failing which the leave would lapse. However, applying Order 42 rule 6 and Onyango, it declined stay, noting the lower court had found the applicant held no legal right over the premises, only permission to occupy. The application partially succeeded, with costs to the applicant.

Key legal issues

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01

Extension of time to file an appeal out of time

Holding

Extension granted; the applicant's delay was plausibly explained by the appeal having been filed on time in the High Court, which struck it out for lack of jurisdiction and directed filing in the ELC

Reasoning

The court applied section 79G of the Civil Procedure Act and the Salat test on unfettered discretion. It found the applicant's account plausible: the appeal was filed timeously in the High Court but struck out on June 7, 2022 following a preliminary objection on jurisdiction, with directions to file in the ELC. The family nature of the dispute also weighed in favour of granting leave.

p. 5
02

Stay of execution of the lower court judgment

Holding

Stay declined because the applicant established no legal right over the suit premises, having only been permitted to stay on land belonging to the 1st respondent

Reasoning

Applying Order 42 rule 6 and Onyango, the court held stay is discretionary and requires sufficient cause. Reading the lower court judgment, the applicant had sought injunction but failed to establish any legal right over the premises; her occupation rested on permission only. Without an arguable proprietary interest, sufficient cause for stay was not shown.

p. 6

Legal principles established

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  • The discretion to extend time for filing an appeal is unfettered, but the applicant must explain the reasons for the delay and any extenuating circumstances
  • Stay of execution is discretionary and should only be granted where sufficient cause has been shown

Court orders

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  1. 1.The applicant is granted leave to file an appeal out of time within 14 days from the date of delivery of the judgment, failing which the leave shall lapse
  2. 2.The prayer for stay of proceedings in Milimani Chief Magistrate's court case no 5447 of 2017 is declined
  3. 3.The applicant shall bear the costs of this suit

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure RulesOrder 42 rule 6
  • Constitution of Kenya 2010rights of a registered proprietor (as invoked by respondents)
  • Land Act2012
  • Land Registration Act2012

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    The discretion to extend time is unfettered; applicant must explain the delay and extenuating circumstances

  • Loice Khachendi Onyango v Alex Inyangu & another
    [2017] eKLR

    Stay of execution is discretionary but must be exercised judiciously upon defined principles; requires sufficient cause

On appeal from
Chief Magistrate's Court at Nairobi (Milimani Commercial Court)
Civil Case No. 5447 of 2017
Jurisdiction invoked
Section 79G of the Civil Procedure Act (extension of time to appeal from subordinate court to the High Court); Order 42 rule 6 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, "Masila v Mutungi & another; Mutungi (Interested Party)", Case Analysis (2022). Environment and Land Miscellaneous Application E101 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12839/eng@2022-09-30

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