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ELCDismissedEnvironment and Land Appeal 31 of 2021· [2023] KEELC 17233 (KLR)

Kufuja (Suing as Administrator Ad Litem to the Estate of Kufuja Beja) v Zia

Environment and Land Court
26 April 2023
EME.K. Makori
2,162 words in judgment
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The bottom line

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A Kenyan court refused to extend time to appeal after a six-month unexplained delay, so the original judgment stands and can now be enforced.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (E.K. Makori, J) determined an application dated 15th August 2022 by Hannington Kubamba Kufuja, suing as administrator ad litem to the estate of Kufuja Beja, seeking a stay of execution of the judgment in Kilifi SRM ELC No 430 of 2018 (delivered by Hon. J.M. Kituku on 1st February 2022) and leave to appeal out of time, with the draft Memorandum of Appeal deemed duly filed. The respondent, Lucky Jego Zia, opposed, contending that no Memorandum of Appeal was filed within the 30-day period under Section 79G of the Civil Procedure Act, that no certificate of delay was produced, and that the application filed on 31st August 2022 - seven months after judgment - was an afterthought to derail execution. The applicant relied on Stecol Corporation, Edith Gichungu Koine, Nzoia Sugar and JMM v PM; the respondent relied on Lawrence Nguthiru. The court applied Section 79G and the Supreme Court's extension-of-time criteria in County Executive of Kisumu (relying on Salat v IEBC), and Order 42 Rule 6 with the Butt v Rent Restriction Tribunal principles for stay. It found the roughly six-month delay inordinate and unexplained - noting the applicant ought to have filed a Memorandum of Appeal, not a Notice of Appeal - and was equally unsatisfied that a case for stay had been made out. The application was dismissed with costs on 26th April 2023.

Key legal issues

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01

Whether the applicant established good and sufficient cause for filing the appeal out of time

Holding

The delay of about six months was inordinate and unexplained; leave to appeal out of time was refused

Reasoning

The court applied the Salat/County Executive of Kisumu criteria: extension of time is discretionary and equitable, and the applicant must lay a basis and explain the delay. The applicant's claim that delay was caused by the trial court was rejected because he filed a Memorandum of Appeal, not a Notice of Appeal, and no certificate of delay was produced. The six-month delay was held inordinate.

p. 4
02

Whether a stay of execution pending the intended appeal should be granted

Holding

Stay was refused because the applicant failed to set out a case for it

Reasoning

The court considered Order 42 Rule 6 of the Civil Procedure Rules and the Butt v Rent Restriction Tribunal principles on the exercise of discretion. Having found the intended appeal itself was not properly before the court for want of extension of time, the court was not satisfied that the applicant had set out a case warranting a stay, and the prayer for stay could not succeed.

p. 5

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay
  • An appeal from a subordinate court to the High Court must be filed within thirty days of the decree unless the court is satisfied there was good and sufficient cause for the delay

Court orders

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  1. 1.The application dated 15th August 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 42 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (8)

  • Stecol Corporation Limited v Susan Awuor Mudembi
    (2021) eKLR

    Conditions for granting leave to file an appeal out of time

  • Edith Gichungu Koine v Stephen Njagi Thoithi
    [2014] eKLR

    Factors for extension of time: period and reason for delay, prejudice, public importance

  • Nzoia Sugar Company Limited v West Kenya Sugar Limited
    (2017) eKLR

    Inordinate delay is a matter of judicial discretion; applicant must explain the delay

  • JMM v PM
    [2018] eKLR

    That the respondent would not be prejudiced by a stay of execution

  • Lawrence Nguthiru Riccardahw v George Ndirangu
    [2015] eKLR

    Need for a certificate of delay to prove delay occasioned by the trial court

  • County Executive of Kisumu v County Government of Kisumu & others
    [2017] eKLR

    Considerations for extension of time, relying on Salat v IEBC

  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others
    Application No 16 of 2014 (2014) eKLR

    Extension of time is an equitable, discretionary remedy; delay must be explained

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417

    Discretionary principles governing stay of execution

On appeal from
Kilifi Senior Resident Magistrate's Court (Kilifi SRM ELC No 430 of 2018)
430 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time) and Order 42 Rule 6 of the Civil Procedure Rules (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, "Kufuja (Suing as Administrator Ad Litem to the Estate of Kufuja Beja) v Zia", Case Analysis (2023). Environment and Land Appeal 31 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17233/eng@2023-04-26

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