Mwololo v Ngului (Miscellaneous Civil Appeal E011 of 2020) [2023] KEELC 661 (KLR)
The bottom line
#Kenya's High Court granted a Makindu man more time to appeal his eviction, pausing execution but requiring Kshs 200,000 security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicant, in possession of the suit property and facing eviction, demonstrated substantial loss if stay was not granted
The lower court's judgment ordered the Applicant's eviction from Makueni/Nguu Ranch/669, his sole source of livelihood. Being in possession, his fear of eviction was not baseless, and eviction would destroy the substratum of the intended appeal. Applying Charles Wahome Gethi and Mukuma v Abuoga, the court found substantial loss established.
Unreasonable delay
Although the delay of some 280 days was inordinate, the Applicant offered a satisfactory explanation for it
The judgment was delivered on January 21, 2020 and the application filed on October 9, 2020. The delay was attributable to the indisposition and closure of the former advocate's office and the Covid-19 pandemic. A request for proceedings was made ten days after judgment and a receipt for appeal payment dated May 29, 2020 showed intention to appeal.
Leave to appeal out of time
Leave granted despite inordinate delay because the Applicant gave reasonable and plausible reasons
Under section 79G, an appeal may be admitted out of time on good and sufficient cause. Applying First American Bank v Gulab Shah and Omar Shurie, the court weighed the delay, its explanation (advocate's ill health, Covid-19), the arguable draft memorandum of appeal and the absence of demonstrated prejudice, and exercised its discretion in the Applicant's favour.
Security for costs
The Applicant was willing to provide security and the condition was satisfied; security fixed at Kshs 200,000/=
Order 42 rule 6(2)(b) is mandatory: the applicant must furnish security guaranteeing due performance of the decree. Citing Arun C Sharma v Ashana Raikundalia, the court held security is not to punish the judgment debtor but to guarantee performance. The Applicant expressed willingness to provide security as directed.
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and must furnish security for the due performance of the decree
- The purpose of stay of execution is to preserve the substratum of the case so a successful appeal is not rendered nugatory
- In exercising discretion to grant extension of time, the court considers the length of and reason for the delay, chances of the appeal succeeding, and prejudice to the respondent
Court orders
#- 1.Leave granted to the applicant to file appeal out of time against the judgment in Makindu SPMCC No 262 of 2013, James Ikumbu Ngului v William Matheka Mwoilolo
- 2.The applicant to file and serve his memorandum of appeal within twenty one days
- 3.Stay of execution of the judgment/decree granted pending the hearing and determination of the applicant's appeal
- 4.The applicant shall deposit Kshs 200,000/= as security for costs in court within 30 days, in default the stay orders shall automatically lapse
- 5.Each party to bear its own costs
- On appeal from
- Senior Principal Magistrate's Court Makindu
- Makindu SPMCC No 262 of 2013
- Jurisdiction invoked
- Sections 1A, 1B, 79G and 95 of the Civil Procedure Act cap 21 and Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwololo v Ngului (Miscellaneous Civil Appeal E011 of 2020) [2023] KEELC 661 (KLR)", Case Analysis (2023). Civil Appeal (Makindu SPMCC No 262 of 2013) – Notice of Motion dated October 5, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/661/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.