Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 43 of 2013· [2023] KEELC 20138 (KLR)

PCM (Filing on her own behalf and on behalf of PNM – Minor) & 2 others v Makona & another

Environment and Land Court
28 September 2023
BOBoaz N. Olao
2,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause enforcement of a land judgment because the company appealing waited six months, missed appeal deadlines, and offered no security.

What this practically means

#

Executive summary

#
This ruling by BN Olao J of the Environment and Land Court at Busia determined a Notice of Motion dated March 17, 2023 by the 2nd Defendant, West Kenya Sugar Co Ltd, seeking stay of execution of a judgment delivered by Omollo J on September 27, 2022, in which the plaintiffs had obtained a declaration that the sale of land parcel Bukhayo/Matayos/262 was null and void, plus injunction and cancellation orders. The applicant, intending to appeal to the Court of Appeal in Kisumu, blamed its late Notice of Appeal on counsel handover and on a decree that erroneously recorded the judgment date as October 27, 2022. The plaintiffs filed a preliminary objection arguing the Notice of Appeal was defective as it related to a non-existent judgment and no valid appeal existed under Rule 75 of the Court of Appeal Rules. The court held the wrong date in the decree was not fatal since the Deputy Registrar drew it and no prejudice ensued, but the application failed on the merits. Applying Order 42 Rule 6 and the Vishram Ravji Halai and Kenya Shell authorities, the court found no sufficient cause (the Notice of Appeal was filed November 9, 2022, beyond the mandatory 14 days), no demonstrated substantial loss (merits of the appeal being irrelevant at this level), inordinate and partly unexplained delay of six months, and no offer of security. The Notice of Motion was dismissed with costs.

Key legal issues

#
01

Sufficient cause for stay

Holding

No sufficient cause shown because the Notice of Appeal was filed out of the mandatory 14-day period under Rule 75(2) of the Court of Appeal Rules

Reasoning

The court held that filing a Notice of Appeal in time constitutes sufficient cause, but the Notice here was filed on November 9, 2022, beyond the 14 days expiring October 11, 2022. A Notice of Appeal is a simple document requiring no file transmission, so the explanation of counsel handover was wanting.

02

Substantial loss

Holding

Not demonstrated; the applicant instead argued the appeal's chances of success, which is irrelevant at this level

Reasoning

The court found the applicant offered nothing on substantial loss, only asserting the appeal was meritorious. Chances of success are relevant only where the court sits appellate over a subordinate court's judgment, not over its own or a court of similar jurisdiction.

p. 5
03

Unreasonable delay and security

Holding

Six months' delay was inordinate and unexplained in part; no security was offered

Reasoning

The judgment was emailed to the applicant on delivery day, yet the application came six months later. Even crediting the file handover of February 8, 2023, no explanation was given for the further 47 days. No security or undertaking was offered, the fourth condition.

p. 5
04

Defective Notice of Appeal and decree

Holding

The defect referring to a non-existent October 27, 2022 judgment does not defeat the application, as the decree was drawn by the Deputy Registrar and no prejudice was caused

Reasoning

The court acknowledged the Notice of Appeal and decree erroneously cited October 27, 2022 as the delivery date. Since the decree was drawn by the Deputy Registrar and the respondents suffered no prejudice, the applicant was not penalized for that flaw.

p. 3

Legal principles established

#
  • An application for stay of execution pending appeal must satisfy the four conditions of Order 42 Rule 6: sufficient cause, substantial loss, no unreasonable delay, and security
  • Meritoriousness of the intended appeal is not a consideration for stay in a court of concurrent/judgment jurisdiction
  • A six-month delay in filing a stay application is inordinate

Court orders

#
  1. 1.The Notice of Motion dated March 17, 2023 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rules 1 and 2; Order 42 Rules 6(1) and 6(2); Order 51 Rule 1
  • Court of Appeal RulesRules 75(1), 75(2), 77(1), 84, 97

Cases cited (2)

  • Vishram Ravji Halai & Another -v- Thornton & Turpin (1963) LTD
    1990 KLR 365

    Three conditions fettering the discretion to grant stay: sufficient cause, substantial loss, and security, without unreasonable delay

  • Kenya Shell Ltd -v- Benjamin Kibiru & Another
    1986 KLR 410

    Substantial loss in its various forms is the cornerstone for granting a stay

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "PCM (Filing on her own behalf and on behalf of PNM – Minor) & 2 others v Makona & another", Case Analysis (2023). Environment & Land Case 43 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20138/eng@2023-09-28

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