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ELCStruck OutEnvironment and Land Miscellaneous Application E09 of 2023· [2023] KEELC 20803 (KLR)

Kandagor v Yegon & another

Environment and Land Court
17 October 2023
JOJ.M Onyango
1,445 words in judgment
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The bottom line

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A Kenyan court struck out an application for more time to appeal because the normal 30-day appeal window had not even expired yet.

What this practically means

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Executive summary

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The Applicant, Samson Kimosop Kandagor, moved the Environment and Land Court at Eldoret by Notice of Motion dated 21st February 2023 seeking leave to file an appeal out of time against the decision of Honourable Biwot in Kabarnet ELC No. 3 of 2017, together with a stay of execution pending appeal. He argued the delay was about two months and not inordinate, that he was unaware of the judgment until eviction was attempted, and that he was in occupation and conducting business on the suit property. Both Respondents opposed, contending the application was premature because the 30-day period under Section 79G of the Civil Procedure Act had not lapsed when it was filed, that the court lacked jurisdiction to extend time in such circumstances, and that the Applicant should have filed the appeal first before seeking its admission out of time, relying on Gerald M'limbine v Joseph Kangangi. On stay, they argued no substantive appeal existed. The court framed two issues: leave to appeal out of time and stay of execution. Holding that the application was filed before expiry of the 30-day statutory period, Onyango J found it premature and superfluous, since leave is unnecessary before the period lapses, and declined to enter the debate on whether an appeal must precede an admission application. On stay, the court held that in the absence of a filed appeal, stay pending appeal does not arise, and discharged the interim stay. The application was struck out with costs to the Respondents.

Key legal issues

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01

Whether leave to appeal out of time could be granted

Holding

The application failed as premature; the 30-day period under Section 79G had not lapsed when the application was filed on 21st February 2023

Reasoning

The court found judgment was delivered on 21st February 2023 and the applicant moved the court the same day, before the 30-day statutory period expired. Leave to appeal out of time is unnecessary before expiry of the statutory period, so the application was premature and superfluous. The court declined to engage the debate on whether an appeal must first be filed, holding it did not arise since the application was not brought under Section 79G.

p. 3
02

Whether stay of execution pending appeal should be granted

Holding

Stay pending appeal cannot be granted in the absence of a filed appeal; the interim stay was discharged

Reasoning

The court agreed with the Respondents that without a substantive appeal on file there is nothing pending against which execution could be stayed. The interim stay order previously granted pending determination of the application was therefore discharged or vacated.

p. 3

Legal principles established

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  • Leave to appeal against a judgment of the lower court need not be sought before expiry of the 30-day statutory period under Section 79G
  • Stay of execution pending appeal cannot be granted where no appeal has been filed

Court orders

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  1. 1.The interim order for stay granted pending the hearing and determination of the application is discharged/vacated
  2. 2.The application is struck out with costs to the Respondents
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 9 Rule 9, Order 43 Rules 1, 2 and 3, Order 50 Rule 6, Order 51 Rule 1 and Order 22 Rule 52 of the Civil Procedure Rules

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, "Kandagor v Yegon & another", Case Analysis (2023). Environment and Land Miscellaneous Application E09 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20803/eng@2023-10-17

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