Muthoki Brothers Company Limited v Masanga
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal out of time can be granted before an appeal is filed
Yes - Section 79G's proviso covers both appeals already filed out of time and appeals yet to be filed
Relying on Abubaker Mohamed Al-Amin vs Firdaus Siwa Somo and Geoffrey Maina Njuguna vs Waweru Ndirangu, the court adopted the interpretation that 'admitted out of time' connotes both allowing an appeal to be filed out of time and admitting an appeal already filed. The word 'admitted' is not restricted to appeals already lodged.
Whether the applicant explained the delay in filing the appeal
Yes - the application was filed within 30 days; the delay arose from the registry's failure to avail a typed copy of the judgment
The judgment was delivered on 11 October 2022 and the application filed on 4 November 2022, within the 30-day period, so there was no delay when filed. The subsequent lapse of time was attributable to the registry's failure to provide the typed judgment, which the applicant demonstrated through correspondence and follow-ups.
Whether stay of execution pending appeal could be granted
No - no appeal existed before the court, so the discretion under Order 42 Rule 6 could not be invoked
Following Abubaker Mohamed Al-Amin and Waithera vs Kalakacha, the court held that the filing of an appeal, in the form of a memorandum of appeal, is a condition precedent to exercising jurisdiction under Order 42 Rule 6. Since only a Notice of Appeal had been filed, the court would be acting in vacuo in granting stay.
Legal principles established
#- The proviso to Section 79G of the Civil Procedure Act applies both prospectively and retrospectively; leave may be sought before or after the memorandum of appeal is filed
- An appeal from a subordinate court to the ELC is commenced by Memorandum of Appeal, not a Notice of Appeal
- Existence of an appeal is a condition precedent to granting stay of execution under Order 42 Rule 6
Court orders
#- 1.The Applicant be and is hereby granted leave to file an Appeal within 30 days of the date hereof
- 2.The costs of the application shall be in the Appeal
- On appeal from
- Magistrates' Court
- CM ELC No 993 of 2020
- Jurisdiction invoked
- Sections 13(1) and 16A(2) of the Environment and Land Court Act, 2015 and the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoki Brothers Company Limited v Masanga", Case Analysis (2023). Environment and Land Appeal E108 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18498/eng@2023-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.