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ELCPartially AllowedCivil Appeal (Makindu SPMCC No 262 of 2013) – Notice of Motion dated October 5, 2020· [2023] KEELC 661 (KLR)

Mwololo v Ngului (Miscellaneous Civil Appeal E011 of 2020) [2023] KEELC 661 (KLR)

High Court of Kenya
8 February 2023
3,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a notice of motion dated October 5, 2020 by James Ikumbu Ngului, the unsuccessful defendant before the Senior Principal Magistrate's Court at Makindu in Makindu SPMCC No 262 of 2013, seeking stay of execution of the judgment delivered on January 21, 2020, leave to appeal out of time under sections 79G and 95 of the Civil Procedure Act, and related orders. The lower court had declared the respondent the rightful owner of Makueni/Nguu Ranch/669, issued a permanent injunction, and ordered the applicant's eviction. The applicant attributed the delay in filing his appeal to his former advocate's indisposition and office closure and to the Covid-19 pandemic. The respondent opposed, citing an unexplained delay of some 280 days, absence of a certificate of delay, and failure to demonstrate substantial loss since no decree had been extracted. Justice T Murigi set out the three Order 42 rule 6 conditions for stay — substantial loss, no unreasonable delay, and security — and, applying Butt v Rent Restriction Tribunal, RWW v EKW, Mukuma v Abuoga and other authorities, found substantial loss established because the applicant was in occupation of the suit property, his sole livelihood, and faced eviction. Although the delay was inordinate, the court found the explanation satisfactory, noting the prompt request for proceedings and payment toward the appeal. The court exercised its wide discretion under section 79G and allowed the application, granting leave to appeal out of time, a 21-day deadline to file the memorandum of appeal, stay of execution pending appeal, and security of Kshs 200,000/= within 30 days in default of which stay lapses. Each party was to bear its own costs.

Key legal issues

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01

Substantial loss

Holding

The Applicant, in possession of the suit property and facing eviction, demonstrated substantial loss if stay was not granted

Reasoning

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.

p. 6
02

Unreasonable delay

Holding

Although the delay of some 280 days was inordinate, the Applicant offered a satisfactory explanation for it

Reasoning

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.

p. 6
03

Leave to appeal out of time

Holding

Leave granted despite inordinate delay because the Applicant gave reasonable and plausible reasons

Reasoning

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.

p. 7
04

Security for costs

Holding

The Applicant was willing to provide security and the condition was satisfied; security fixed at Kshs 200,000/=

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The applicant to file and serve his memorandum of appeal within twenty one days
  3. 3.Stay of execution of the judgment/decree granted pending the hearing and determination of the applicant's appeal
  4. 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. 5.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Act cap 21sections 1A, 1B, 79G, 95
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)

Cases cited (9)

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • RWW v EKW
    (2019) eKLR
  • Consolidated Marine v Nampijja & another
    Civil App No 93 of 1989 (Nairobi)
  • Charles Wahome Gethi v Angela Wairimu Gethi
    (2008) eKLR
  • Mukuma v Abuoga
    (1988) KLR
  • Tropical Commodities Suppliers Ltd and others v International Credit Bank Ltd (In liquidation)
    (2004) 2 EA 331
  • Arun C Sharma v Ashana Rakundalia T/A Raikundalia & Co Advocates & 2 others
    (2014) eKLR
  • First American Bank of Kenya Ltd v Gulab P Shah & 2 others
    Nairobi (Milimani) HCCC No 2255 of 2000 (2002) I EA 65
  • Omar Shurie v Marian Rashe Yafar
    Civil Application No 107 of 2020
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

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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, "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.