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ELCDismissedEnvironment & Land Case 502 of 2017· [2023] KEELC 19963 (KLR)

Maina v Wanjohi & 3 others

Environment and Land Court
21 September 2023
3,477 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's attempts to stop his eviction because he offered no evidence for the delay or missed hearing.

What this practically means

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Executive summary

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The 1st Defendant, Johnson Gaitho Wanjohi, brought two applications. By the Notice of Motion dated 28/3/2023 he sought stay of execution of eviction orders issued on 22/3/2023 (after the court allowed the Plaintiff's unopposed application dated 27/1/2022) and setting aside of those orders, alleging his counsel missed the online hearing due to a power outage. He also relied on a pending appeal, CA No. E572 of 2022. By the Notice of Motion dated 6/6/2023 he sought extension of time to deposit Kshs 100,000/- security required by conditional stay orders granted on 17/11/2022, explaining he had travelled to Somalia for work, lost touch with his advocates, was attacked and lost his belongings, and only returned to Kenya in March 2023. The Plaintiff opposed both applications as abuses of process aimed at denying him the fruits of his judgment, noting the earlier conditional stay orders had lapsed for non-compliance, the eviction application had been duly served, and the delay was inordinate and unexplained. The court, applying Order 42 rule 6 and the Butt v Rent Restriction Tribunal principles, found no substantial loss demonstrated and no evidence supporting the claimed power outage. Applying the Salat and Dilpack principles on extension of time, it found inordinate, unexplained delay and no evidence of the Somalia trip. Both applications were dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether stay of execution of the eviction orders was warranted

Holding

Stay refused; no substantial loss demonstrated and no evidence supporting the claimed power outage

Reasoning

The court applied Order 42 rule 6 and Butt v Rent Restriction Tribunal. The applicant's counsel attributed non-attendance at the hearing of the eviction application to a power outage, but no evidence was tendered. The earlier conditional stay orders had lapsed for non-compliance, and the eviction application had been duly served and unopposed.

p. 5
02

Whether time should be enlarged to comply with the conditional stay orders of 17/11/2022

Holding

Extension refused for inordinate and unexplained delay

Reasoning

Applying Salat and Dilpack, the court held the applicant bore the burden of explaining the delay. No evidence supported the claim of travel to Somalia; the applicant returned in March 2023 but filed three months later, and the explanation about young children cast doubt on the real reason for non-compliance.

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, timely application and security
  • Extension of time is a discretionary equitable remedy and the applicant bears the burden of explaining the delay

Court orders

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  1. 1.The Notice of Motion dated 28/3/2023 be and is hereby dismissed
  2. 2.The Notice of Motion dated 6/6/2023 be and is hereby dismissed
  3. 3.In both applications costs shall be favour of the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 43 rule 6
  • Civil Procedure RulesOrder 50 rule 6
  • Civil Procedure RulesOrder 51

Cases cited (3)

  • Butt Vs. Rent Restriction Tribunal
    (1982) KLR 417

    Principles for granting or refusing stay of execution pending appeal

  • Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral and Boundaries Commission & 7 Others
    (2014)eKLR

    Principles governing extension of time

  • Dilpack Kenya Limited Vs. William Muthama Kitonyi
    (2018)eKLR

    Inadvertence as a ground for extension of time requires disclosure of its nature and quality

Jurisdiction invoked
Inherent powers of the court and Civil Procedure Rules (Order 42 rule 6; Order 50 rule 6)

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, "Maina v Wanjohi & 3 others", Case Analysis (2023). Environment & Land Case 502 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19963/eng@2023-09-21

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