Byegon & 2 others v Ngeno (Environment and Land Miscellaneous Application E007 of 2022) [2023] KEELC 312 (KLR)
The bottom line
#The court allowed a late appeal because the delay was the court's own fault, but stayed execution only if the appellants deposited Kshs.100,000 in court.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal out of time should be granted under Section 79G of the Civil Procedure Act
Leave granted because the judgment was delivered in the absence of the parties and without notice, and the delay was caused by the court.
The court applied the Salat and Leo Sila Mutiso principles on extension of time, noting the judgment was delivered in the absence of the Applicants and their Counsel, that no notice of delivery of judgment was served, and that the Applicants only learned of the judgment on March 1, 2022 when time had run out. The delay was therefore attributable to the court, amounting to good and sufficient cause under Section 79G.
Whether the Applicants discharged the Order 42 Rule 6(2) conditions for stay of execution pending appeal
Stay granted conditionally: substantial loss not demonstrated, but delay was explained and security volunteered, so stay was granted subject to a deposit of Kshs.100,000/= in court.
The court set out the three Order 42 Rule 6(2) conditions. It found no evidence of substantial loss and rejected the 'man of straw' claim, holding that poverty does not bar a decree holder from enjoying the fruits of judgment. However, the delay was court-caused and the Applicants volunteered security; the court therefore granted a conditional stay to preserve the substratum of the appeal, invoking the overriding objective and proportionality.
Legal principles established
#- A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour in extension of time applications
- Delay occasioned by the court itself constitutes good and sufficient cause under Section 79G of the Civil Procedure Act
- A decree holder's financial inability alone does not justify denying him the fruits of his judgment
Court orders
#- 1.The Applicants shall within 30 days from the date of this ruling deposit Kshs.100,000/= in Court; in default, the stay shall automatically lapse
- 2.If the Applicants have not been supplied with the documents required to prepare the record of Appeal, their Counsel shall liaise with the Deputy Registrar of this court and ensure that the same are supplied within fifteen (15) days of this order
- 3.The Applicants shall within forty-five (45) days from the date of this ruling compile, file and serve upon the Respondents a complete record of Appeal
- 4.If the Applicants do not file the Appeal within the time stipulated in (iii) above, the window granted to file the Appeal shall automatically lapse
- 5.There shall be no Costs
- On appeal from
- Chief Magistrate's Court, Kericho
- Kericho Civil Suit No. 22 of 2015
- Jurisdiction invoked
- Sections 1A, 3A, 79G & 95 of the Civil Procedure Act; Order 42 Rule 6 & Order 50 Rule 5 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Byegon & 2 others v Ngeno (Environment and Land Miscellaneous Application E007 of 2022) [2023] KEELC 312 (KLR)", Case Analysis (2023). Kericho ELC Misc Appl 7 of 2022 (arising from Kericho Civil Suit No. 22 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/312/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.