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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 117 of 2008· [2023] KEELC 15726 (KLR)

Kirimania v M’Iniu & 3 others

Environment and Land Court
22 February 2023
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to extend time to appeal because the defendants waited seven months after learning of the judgment, and no appeal was even filed.

What this practically means

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Executive summary

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This is a ruling by C.K. Nzili, J of the Environment and Land Court at Meru on the defendants' application dated December 13, 2022 in Environment & Land Case 117 of 2008. The applicants sought a stay of execution of the judgment delivered on May 18, 2022 pending an intended appeal, and leave to appeal out of time. They claimed they only recently learned of the judgment because no notice of delivery was issued. The plaintiff opposed, producing evidence that notice was served by email on the defendants' advocates, who attended the judgment delivery with instructions, and that the applicants requested certified proceedings in August 2022 yet only moved the court in December 2022 - an unexplained seven-month delay. The court framed two issues: entitlement to leave to appeal out of time and entitlement to stay of execution. Applying Leo Sila Mutiso, Thuita Mwangi and Joreth Ltd, the court held the delay was inordinate and unexplained, the applicants' counsel having been duly informed of and present at the judgment delivery, and found the applicants had deliberately slept on their rights; leave was refused. On stay, applying James Wangalwa, RWW v EKW and Jaber Mohsen, the court found no tangible evidence of substantial loss or of developments on the suit land, no security offered, inordinate delay, and no pending appeal; submissions could not substitute for evidence. The application was dismissed with costs on February 22, 2023.

Key legal issues

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01

Leave to appeal out of time

Holding

Refused - counsel was informed of and attended judgment delivery; the seven-month delay was unexplained.

Reasoning

The court applied the Mutiso and Thuita Mwangi factors: length of and reason for delay, arguability and prejudice. The email address used for notice was undisputed, counsel attended the judgment with instructions, and the applicants requested certified proceedings in August 2022 but only moved in December 2022. The delay was deliberate inaction, not ignorance of the judgment.

p. 3
02

Stay of execution pending appeal

Holding

Refused - no substantial loss demonstrated, no security offered, inordinate delay, and no pending appeal.

Reasoning

Applying Wangalwa, RWW v EKW and Jaber Mohsen, the applicants tendered no evidence of developments on the suit land or of how execution would render the appeal nugatory. They never lived on the land, filed no supplementary affidavit to counter the plaintiff's averments, offered no security, and had not yet filed an appeal, having failed to obtain leave.

p. 3

Legal principles established

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  • Written submissions, however strong, cannot amount to evidence.
  • Extension of time is a discretionary, judicially exercised remedy assessed on length of and reason for delay, arguability and prejudice.
  • A stay applicant must demonstrate that execution would negate the essential core of their appeal.

Court orders

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  1. 1.The application dated December 13, 2022 is dismissed with costs.

Authorities

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Cases cited (13)

  • Amal Hauliers Ltd vs Abdunnasir Abubakar Hassan
    (2017) eKLR

    Stay is discretionary, based on special circumstances of the case.

  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417

    Discretionary power to grant stay considering special circumstances.

  • Thuita Mwangi vs Kenya Airways Ltd
    (2003) eKLR

    Parameters for extension of time: delay, reason, arguability, prejudice, compliance with timelines.

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    (1997) eKLR

    Factors for extension of time: length of delay, reason, chances of success, prejudice.

  • Joreth Ltd vs Mbugua & 3 others
    Civil Appeal E099 of 2021 (2022) KECA 163 (KLR)

    Failure to account for delay and absence of draft memorandum show lack of seriousness.

  • Nicholas Kiptoo Arap Salat vs IEBC & 7 others
    (2014) eKLR

    Principles for extension of time, cited with approval in Joreth Ltd.

  • George Mwenda Muthini vs Mama Day Nursery & Primary School Nyeri
    C/A No 42 (2014) (UR)

    Extension of time principles.

  • Aviation Cargo Support Ltd vs St Marks Freight Services Ltd
    (2014) eKLR

    Extension of time principles.

  • James Wangalwa & another vs Agnes Naliaka Cheseto
    (2012) eKLR

    Applicant must show execution would negate the essential core of the appeal.

  • RWW vs EKW
    (2019) eKLR

    Court must balance the interests of appellant and respondent.

  • Jaber Mohsen & another vs Priscilla Boit & another
    (2014) eKLR

    Failure to apply for stay within the compliance period amounts to unreasonable delay.

  • Dickson Muricho Muriuki vs Timothy Muriuki & 6 others
    (2013) eKLR

    Stay may be declined in the interest of justice.

  • Daniel T Arap Moi v Stephen Murithi & another
    (2014) eKLR

    Written submissions cannot amount to evidence.

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant stay of execution and extension of time (application dated December 13, 2022)

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, "Kirimania v M’Iniu & 3 others", Case Analysis (2023). Environment & Land Case 117 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15726/eng@2023-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.