Macharia & another v Macharia & 2 others (Environment and Land Miscellaneous Application E027 of 2022) [2023] KEELC 499 (KLR)
The bottom line
#The High Court in Murang'a stopped eviction of a family who bought land in 1995, giving them 14 days to file an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated good and sufficient cause for the 106-day delay in filing the intended appeal under Section 79G of the Civil Procedure Act
Yes - the delay was explained by lack of service of summons and hearing notices, and the absence of an Affidavit of Service raised serious questions about service
The Court applied the principles in Leo Sila Mutiso and the Salat decision on extension of time. The suit proceeded ex parte and judgment was delivered ex parte. No Affidavit of Service was filed to show the Applicants were served with Summons to Enter Appearance. Since service goes to the core of fair hearing, doubt on service means the ex parte judgment may have been entered irregularly, explaining the delay to the Court's satisfaction.
Whether the Applicants satisfied the Order 42 Rule 6 conditions for stay of execution
Yes - substantial loss was established because the Applicants faced eviction from land they had occupied for over 27 years pursuant to a sale agreement with the deceased seller, a sibling of the Respondents
The Court applied the three conditions from Halal & another v Thorton & Turpin Ltd (sufficient cause, substantial loss, furnishing of security) as endorsed in D. Korir v Kenyatta University. Facing eviction despite a 1995 sale agreement with the deceased seller, the Applicants stood to suffer substantial loss, and sufficient cause for the stay existed.
Costs of the application
The Applicants were awarded costs of the application
Having found the application merited and allowed it in terms of prayers 2 and 4, the Court held that the Applicants, as successful parties, were entitled to costs of the application.
Legal principles established
#- Service of summons goes to the core of fair hearing; where there is doubt on service, an ex parte judgment may have been entered irregularly and constitutes good cause for delay in filing an appeal
- The purpose of a stay of execution pending appeal is to preserve the subject matter of the dispute so that a successful appeal is not rendered nugatory, balanced against a successful litigant's right to the fruits of judgment
Court orders
#- 1.The Notice of Motion dated 2nd November 2022 is allowed entirely in terms of prayers No. 2 and 4
- 2.An order for stay of execution of the trial Court's judgment dated 19th July 2022 pending the hearing and determination of the application
- 3.The Applicants are awarded costs of the application
- 4.The Applicants to file the Intended Appeal within 14 days from the date of the ruling, failing which the orders issued will lapse automatically
- On appeal from
- Trial Court (subordinate court)
- Not stated
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Section 79G of the Civil Procedure Act, and Orders 22 Rule 22 and 51 Rules 1 & 15 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Macharia & another v Macharia & 2 others (Environment and Land Miscellaneous Application E027 of 2022) [2023] KEELC 499 (KLR)", Case Analysis (2023). Not stated in the judgment copy provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/499/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.