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ELCAllowedMiscellaneous Application E004 of 2022· [2023] KEELC 15776 (KLR)

Lekishow Olegem v Gesare Maroro Ondieki Mary (Suing as the Legal Attorney of Marco Mangerere Mabeya) & Land Registrar, Transmara

Environment and Land Court
21 February 2023
3,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a landowner extra time to appeal and stopped his eviction, provided he deposits Kshs 200,000 as security.

What this practically means

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Executive summary

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The applicant, registered owner of L.R. No. Transmara/Moyoi/130, sought extension of time to file a memorandum of appeal out of time and a stay of execution of the judgment of Hon. Robert Mobisa Oanda (SPM) delivered on 30th June 2022 in Kilgoris Spm ELC Case No. 56 of 2018, which cancelled or nullified his title. He attributed the delay of roughly three months to his advanced age and illiteracy, Covid-era court practices channelling communications through advocates who failed to inform him, and the need to seek a second opinion and change advocates. The 1st Respondent opposed, arguing the applicant fully participated in the trial, was represented, and was merely seeking to deny her the fruits of the judgment. Applying the Thuita Mwangi guidelines, the court found the delay of approximately 60 days not inordinate and satisfactorily explained, held the intended appeal arguable because it raised jurisdictional questions - which can be raised even after participation and judgment - and the rights of a registered proprietor, and found no prejudice to the respondent. On stay, applying Order 42 Rule 6(1) and the James Wangalwa and RWW v EKW authorities, the court found substantial loss: the applicant had occupied the property as his home for 20 years and execution could lead to eviction and alienation to third parties, rendering the appeal nugatory. The court extended time by 7 days to file the memorandum of appeal, granted stay of execution pending the intended appeal, directed filing of the record of appeal within 45 days, ordered security of Kshs 200,000 within 14 days, and directed that costs abide the outcome of the substantive appeal.

Key legal issues

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01

Whether the delay of about three months in filing the appeal was inordinate and excusable

Holding

The delay of approximately 60 days was not inordinate and was excused on grounds of the applicant's age, illiteracy, Covid-era court practices and the need to seek a second opinion and change advocates.

Reasoning

The court measured the delay between the 30 June 2022 judgment and the 27 September 2022 draft memorandum, found it roughly three months but characterised the operative lateness as about 60 days. It accepted the applicant's explanation: he was old and illiterate, court communications during Covid went through advocates who failed to communicate, and he needed a second opinion leading to a change of advocate.

p. 4
02

Whether the intended appeal was arguable

Holding

The appeal was arguable because it raised jurisdictional questions against the trial court and the rights of a registered proprietor, which are points of law fit for a substantive appeal.

Reasoning

The applicant intended to challenge the trial court's jurisdiction by virtue of the Statute of Limitations Act and its reliance on adjudication records to nullify his title. The court held jurisdiction is fundamental, cannot be conferred by participation, and can be raised even after judgment; such an issue is arguable and should be canvassed on appeal, reinforced by the Article 50 right of appeal.

p. 5
03

Whether the respondent would suffer prejudice if extension was granted

Holding

No prejudice would result since the extension only enables the applicant to pursue his constitutional right of appeal without altering any legal rights already bestowed on the respondent.

Reasoning

The court reasoned that granting extension does not alter the respondent's existing legal rights; it merely allows the applicant to exercise his Article 50 right to appeal. It also reminded litigants that compliance with court orders and time directives is a cardinal principle unless proper justification for non-compliance is given.

04

Whether stay of execution pending appeal should issue

Holding

Stay was granted because the applicant, in occupation for 20 years, would suffer substantial loss through eviction and possible alienation to third parties rendering the appeal nugatory.

Reasoning

Applying Order 42 Rule 6(1) and the authorities, the court found the application made without unreasonable delay, that eviction from the applicant's home of 20 years would cause great hardship and substantial loss, and that execution could lead to registration in the respondent's name and further alienation, rendering the appeal nugatory. Security of Kshs 200,000 was imposed.

p. 8

Legal principles established

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  • Jurisdiction cannot be inferred from a party's participation in proceedings and may be raised even after judgment.
  • An appeal is a right under Article 50 that courts should not impede with procedural technicalities.
  • Extension of time applications are governed by the Thuita Mwangi guidelines: delay, reasons, arguability, prejudice, compliance and public interest.

Court orders

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  1. 1.Extension of 7 days from the date of the ruling to prepare, file and serve the memorandum of appeal
  2. 2.Stay of execution of the judgment of 30th June 2022 in Kilgoris Spm ELC Case No. 56 of 2018 pending the hearing and determination of the intended appeal
  3. 3.Applicant to prepare, file and serve the record of appeal within 45 days from the date of filing the memorandum of appeal
  4. 4.Applicant to deposit Kshs 200,000/- within 14 days from the date of the ruling as security during the pendency of the intended appeal
  5. 5.Costs of the application to abide the outcome of the substantive appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Constitution of Kenya, 2010Article 50
  • Statute of Limitations Actnull

Cases cited (3)

  • Thuita Mwangi v Kenya Airways
    (2003) eKLR

    Guidelines for evaluating extension of time applications: delay, reasons, arguability, prejudice, compliance and public interest.

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR

    Execution alone does not amount to substantial loss; applicant must show execution would irreparably affect the essential core of the appeal.

  • RWW v EKW
    [2019] eKLR

    Purpose of stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, balancing both parties' interests.

On appeal from
Chief Magistrate's Court, Kilgoris
Kilgoris Spm ELC Case No. 56 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Cap 21 (extension of time to appeal from subordinate courts) and Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Lekishow Olegem v Gesare Maroro Ondieki Mary (Suing as the Legal Attorney of Marco Mangerere Mabeya) & Land Registrar, Transmara", Case Analysis (2023). Miscellaneous Application E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15776/eng@2023-02-21

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