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ELCPartially AllowedEnvironment and Land Case Civil Suit 586 of 2001· [2022] KEELC 13416 (KLR)

Nganga v David & 2 others

Environment and Land Court
3 October 2022
7,609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court let a landowner appeal late because of Covid-19 and her lawyer's mistake, but she must deposit Kshs 2.5 million as security first.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Naikuni J) determined a notice of motion dated October 23, 2020 by the 1st defendant, Elizabeth Shighadi David, seeking stay of execution of the judgment delivered March 9, 2020, extension of time to file a notice of appeal out of time, and deeming of a notice of appeal as duly filed. The application followed a judgment in the plaintiff's favour in a land dispute dating to 2001, in which the plaintiff claimed ownership of suit property allegedly fraudulently re-allocated and sold to the 1st defendant. The 1st defendant attributed the delay in filing the notice of appeal to her advocate's mis-diarising of the judgment date and to Covid-19 disruptions. The plaintiff opposed, alleging gross professional misconduct by Mr Billy Kongere, who signed a change-of-advocates consent while a partner of a different firm than that on record, and contended the seven-month delay was inordinate and unexplained. Kongere was cross-examined. The court framed three issues: whether the threshold for stay and extension of time was met, entitlement to reliefs, and costs. Applying Order 42 rule 6 and the extension-of-time principles (including Salat), the court found the delay undue but accepted the pandemic and advocate's error as sufficient reason, invoking the oxygen principles and Article 159(2). The application was allowed, with the applicant directed to deposit Kshs 2,500,000 as security for costs in a joint escrow account within 30 days, and each party ordered to bear their own costs.

Key legal issues

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01

Whether the conditions for stay of execution pending appeal were met

Holding

Court found sufficient cause and willingness to furnish security, but found substantial loss not demonstrated since no execution had occurred

Reasoning

The court set out the Order 42 rule 6 conditions: sufficient cause, substantial loss, no unreasonable delay and security. It found sufficient cause in the applicant's long occupation and the security offered by the immovable property, but was not convinced on substantial loss because no execution of the decree had been carried out since judgment. It nonetheless allowed the application overall, invoking the overriding objective.

p. 11
02

Whether extension of time to file a notice of appeal out of time should be granted

Holding

Extension granted; the Covid-19 pandemic disruption constituted a reasonable and cogent explanation for the delay despite the advocate's glaring mistakes

Reasoning

The court applied the Salat principles (length of delay, reasons, chances of appeal succeeding, prejudice to respondent). It took judicial notice of the 2020 Covid-19 disruption to movement and access to justice, found the reasons reasonable, and invoked the oxygen principles under the Environment and Land Court Act and Article 159(2) of the Constitution to grant the relief despite the disturbing conduct of the advocates.

p. 12
03

Whether the delay of about seven months was inordinate

Holding

The court acknowledged the delay was undue and unreasonable but excused it in the pandemic context

Reasoning

The court accepted the respondent's reliance on the Salat principles and found the filing on October 23, 2020, seven months after judgment, was clearly an undue and unreasonable delay from the 30-day statutory timeline. However, it nonetheless treated the pandemic and the advocate's mis-diarising of the judgment date as sufficient reason and proceeded to consider enlargement under section 7 of the Appellate Jurisdiction Act and section 79G.

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Costs

Holding

Although the applicant succeeded, each party was to bear their own costs

Reasoning

The court noted costs follow the event under section 27(1) of the Civil Procedure Act, and that the applicant had succeeded, but in the court's view it was fair that each party bear their own costs of the application.

p. 13

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party who must act candidly and honestly and explain the delay
  • A mistake by counsel should not ordinarily be visited on an innocent client where the interests of justice so dictate

Court orders

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  1. 1.The notice of motion application dated October 23, 2020 be and is hereby allowed
  2. 2.The 1st defendant/applicant directed to deposit Kshs 2,500,000 in an escrow joint account of the Law Firms of Messrs Tindika Co Advocates and Kivuva Kitonga Advocates as security for costs within thirty (30) days pending hearing and final determination of the appeal before the Court of Appeal
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 79G, 27(1)
  • Appellate Jurisdiction ActSection 7
  • Civil Procedure Rules, 2010Order 42 rule 6
  • Environment and Land Court ActSections 3, 13, 19
  • Constitution of Kenya, 2010Articles 48, 159(2)
  • Land ActSections 101, 150
  • Law of Succession ActCap 160

Cases cited (19)

  • Philip Keipto Chemwolo & another v Augustine Kubende
    [1986] eKLR

    Mistake of counsel should not be visited on the client where justice so dictates

  • Belinda Muras & 6 Others v Amos Wainaina
    [1978] eKLR

    Same principle on rectifying counsel's mistake in the interest of justice

  • Wanjiru Mwangi & Anor
    2013 eKLR

    Court's jurisdiction to enlarge/extend time to appeal

  • APA Insurance Co v Michael Karanja Muturi
    (2016) eKLR

    Principles for extension of time

  • Nahesh Aggarwal v Silas Kiptui Kipchilla & 2 others
    Civil Application No 136 of 2019, Eldoret 2020 eKLR

    Extension of time is an equitable remedy; burden on applicant; delay and prejudice considered

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR

    Underlying principles for extension of time

  • Bi Mach Engineering Limited v James Kahoro Mwangi
    (2011) eKLR

    Client's duty to follow up with advocates; blaming advocate not excusable

  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    (2015) eKLR

    Same duty of client to pursue the matter

  • James Waweru Muturi v Paul Thuo Njambi
    Civil Application No 159 of 2017

    Extension of time requires honesty, equity and candour

  • Kutima Investments Limited v Muthoni Kihara & another
    Civil Application No 120 of 2005 Nbi (2006) eKLR

    Professional misconduct/impunity in representation

  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR, Civil Appeal No 107 of 2015

    Criteria for stay of execution pending appeal

  • Vishram Rouji Halal v Thornton & Turpin
    Civil Appeal No 15 of [1990] KLR 365

    Three conditions for stay: sufficient cause, substantial loss, security

  • Hassan Guyo Wakolo v Straman EA Ltd
    [2013]

    Appellant must prove appeal would be rendered nugatory

  • Canvass Manufacturers Limited v Stephen Reuben Korunditu
    Civil Application No 158 of 1994 [1994] LLR 4853

    Conditions for stay: arguable appeal and nugatory appeal; judicial exercise of discretion

  • Stephen Wanjiku v Central Glass Industries Limited
    Nbi HCC No 6726 of 1991

    Four fundamental ingredients for stay of execution

  • Christopher Were Barasa & another v Joseph Ndichu Ngige
    (2021) eKLR

    Court to weigh consequences of granting stay; proportionality and equality of arms

  • William Olotch v Pan Africa Insurance Co Limited
    Supreme Court Civil Application No 14 of 2020 (2020) eKLR

    Reasonable and cogent explanation for delay; absence of prejudice

  • Anwar Loitiptip v Independent Electoral and Boundaries Commission
    SC Pet. No 18 of 2018, eKLR

    Extension of time principles

  • Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others
    SC Petition No 38 of 2018 (2019) eKLR

    Sufficient reasons for inadvertent delay; no prejudice shown

Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act Cap 21, section 7 of the Appellate Jurisdiction Act Cap 9 and Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Nganga v David & 2 others", Case Analysis (2022). Environment and Land Case Civil Suit 586 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13416/eng@2022-10-03

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