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ELCDismissedNotice of Motion dated 17.10.2022 (case number not stated in judgment; relates to Maua SPM ELC No. 250 of 2018)· [2023] KEELC 44 (KLR)

Miriti v Christian Foundation Fellowship Church Kathelwa (Suing through Rev. Stephen Gitirime Regional Overseer ) (Environment & Land Miscellaneous Case E038 of 2022) [2023] KEELC 44 (KLR)

Environment and Land Court
18 January 2023
1,199 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to give a litigant more time to appeal and blocked his attempt to stop execution because he offered no evidence, only excuses.

What this practically means

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Executive summary

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This was a notice of motion dated 17.10.2022 in which Stanley Miriti, the applicant, sought leave to appeal out of time against the judgment in Maua SPM ELC No. 250 of 2018 delivered on 25.7.2022, and a stay of execution of the decree issued on 8.9.2022. He swore that the suit was not heard on merits, that judgment was passed in his absence, and that he learned of it only when served with a 30-day statutory notice, and that without a stay he would be evicted from the suit land and his structures demolished. Stephen Gitirime, the respondent, opposed, pointing out that a permanent injunction had issued against the applicant on 2.11.2009, that the applicant's appeal (Civil Appeal No. 32 of 2010) was dismissed, that he was cited for contempt in Criminal Case No. 3683 of 2009, and that the application was a delaying tactic by a party with unclean hands. The court set out the established principles for extension of time and stay of execution, citing Salat, Thuita Mwangi, Vishva Stone Suppliers, James Wangalwa and RWW v EKW. It found the delay of over three months unexplained: the alleged loss of contact with the former advocate was unsubstantiated by affidavit, the applicant did not state when the suit was heard or when he last attended court, and neither the proceedings nor the judgment were attached to demonstrate arguability. Substantial loss was merely alleged despite the applicant's 2009 orders and contempt history, and the respondent's averments on prejudice went uncountered. The application was dismissed with costs to the respondent.

Key legal issues

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01

Threshold for extension of time to appeal out of time

Holding

The applicant failed the threshold: the over-three-month delay was not sufficiently explained, no proceedings or judgment were attached to show arguability, and the respondent's prejudice was not countered

Reasoning

The court applied the Salat principles requiring a non-inordinate, explained delay, absence of prejudice and the interest of justice. The applicant blamed a former advocate without an affidavit from that advocate, did not say when the suit was heard, and did not attach proceedings or the judgment. The respondent's evidence of prior litigation history went unrebutted, so the extension-of-time prayer failed.

p. 3
02

Threshold for stay of execution

Holding

Stay was refused because substantial loss was merely alleged, not demonstrated, particularly given the applicant's history of breaching court orders including contempt proceedings

Reasoning

Relying on James Wangalwa and RWW v EKW, the court held stay requires demonstrated substantial loss, prompt application, security and the interest of justice. The applicant gave no particulars of substantial loss, had previously been enjoined in 2009 and cited for contempt in Criminal Case No. 3683 of 2009, and did not counter the respondent's affidavit on prejudice. The balancing exercise therefore favoured the successful litigant.

p. 3

Legal principles established

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  • Extension of time is not a matter of right; the burden lies on the applicant to make out the case
  • A party seeking stay of execution must demonstrate substantial loss with cogent and tangible evidence, not mere allegation
  • There is no fixed minimum or maximum period of delay, but a satisfactory explanation must be given

Court orders

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  1. 1.The notice of motion dated 17.10.2022 seeking leave to appeal out of time and stay of execution is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat vs IEBC & others
    (2014) eKLR
  • Thuita Mwangi vs Kenya Airways Ltd
    (2003) eKLR
  • Vishva Stone Suppliers Co. Ltd vs RSR Stone (2006) Ltd
    (2020) eKLR
  • James Wangalwa vs Agnes Naliaka Cheseto
    (2012) eKLR
  • RWW vs EKW
    (2019) eKLR
On appeal from
Senior Principal Magistrate's Court, Maua
Maua SPM ELC No. 250 of 2018
Jurisdiction invoked
Inherent jurisdiction to extend time and stay execution (Order 42 principles; the judgment does not cite a specific constitutional provision)

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, "Miriti v Christian Foundation Fellowship Church Kathelwa (Suing through Rev. Stephen Gitirime Regional Overseer ) (Environment & Land Miscellaneous Case E038 of 2022) [2023] KEELC 44 (KLR)", Case Analysis (2023). Notice of Motion dated 17.10.2022 (case number not stated in judgment; relates to Maua SPM ELC No. 250 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/44/eng@2023-01-18

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