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ELCPartially AllowedKericho ELC Misc Appl 7 of 2022 (arising from Kericho Civil Suit No. 22 of 2015)· [2023] KEELC 312 (KLR)

Byegon & 2 others v Ngeno (Environment and Land Miscellaneous Application E007 of 2022) [2023] KEELC 312 (KLR)

Environment and Land Court
26 January 2023
5,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a notice of motion dated March 8, 2022 by the Applicants seeking leave to appeal out of time against the judgment in Kericho Civil Suit No. 22 of 2015 delivered on January 7, 2022, and a stay of execution of that decree pending the intended appeal. The Applicants explained that judgment had repeatedly been adjourned, listed for delivery on notice, and was ultimately delivered on January 7, 2022 in the absence of all parties and without notice of delivery; they learned of it on March 1, 2022, after the 30-day period under Section 79G of the Civil Procedure Act had expired. A letter dated December 8, 2021 to the Chief Executive Officer, Kericho Law Courts, inquiring about the judgment went unanswered. The Respondent opposed the application, contending the delay of about two months was unjustified, that no draft Memorandum of Appeal was annexed, and that the Applicants were guilty of laches and were denying him the fruits of a decree of Kshs.100,000/= general damages and Kshs.100,000/= mesne profits plus costs and interest. Applying the principles in Salat and Leo Sila Mutiso, the court found the delay was caused by the court itself and that good and sufficient cause had been shown under Section 79G, and granted leave to appeal out of time. On stay, applying Order 42 Rule 6(2), the court found substantial loss not proved - the 'man of straw' claim being insufficient since poverty does not bar enjoyment of a judgment - but noting the explained delay and the volunteered security, granted a conditional stay: deposit of Kshs.100,000/= in court within 30 days (failing which the stay lapses), supply of typed proceedings within 15 days, and filing of the complete record of appeal within 45 days, failing which the window lapses. Each party was to bear no costs.

Key legal issues

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01

Whether leave to appeal out of time should be granted under Section 79G of the Civil Procedure Act

Holding

Leave granted because the judgment was delivered in the absence of the parties and without notice, and the delay was caused by the court.

Reasoning

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.

p. 7
02

Whether the Applicants discharged the Order 42 Rule 6(2) conditions for stay of execution pending appeal

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.There shall be no Costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1A(2), 1B, 3A, 76, 79G, 95
  • Civil Procedure RulesOrder 42 Rules 6(1), 6(2), 50 Rule 5, Order 21 Rule 13
  • Constitution of KenyaArticle 159; Article 159(2)(c)

Cases cited (15)

  • Thuita Mwangi vs. Kenya Airways Ltd
    [2003] eKLR
  • Leo Sila Mutiso vs. Hellen Wangari Mwangi
    [1999] 2 EA 231; Civil Application No. NAI 255 of 1997 (unreported)
  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 others
    (2014) eKLR
  • Charles N. Ngugi vs ASL Credit Limited
    [2022] eKLR
  • Karanja Mbugua & Another V Marybin Holding Co. Ltd
    [2014] eKLR
  • Butt vs Rent Restriction Tribunal
    [1979] eKLR
  • Florence Hare Mkaha vs Pwani Tawakal Mini Coach & Another
    [2014] eKLR
  • Direct line Assurance Company Ltd vs Michael Njima Muchiri & Another
    (2020) eKLR
  • Dilpack Kenya Limited v William Muthama Kitonyi
    (2018) eKLR
  • Jaber Mohsen Ali & Another vs Priscillah Boit & Another
    E&L No. 200 of 2012 [2014] eKLR
  • Flamingo Towers Limited and Another vs Homeland Media Group Limited
    [2021] eKLR
  • Consolidated Marine vs. Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Mukuma vs Abuoga
    (1988) KLR 645
  • Justus Kyalo Musyoka vs. John Kivungo
    [2019] eKLR
  • Caneland Ltd & 2 Others vs Delphis Bank Ltd
    Nai Civil Application No. 344 of 1999
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.