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ELCAllowedEnvironment and Land Appeal E076 of 2022· [2023] KEELC 20898 (KLR)

Gabriel Muthua Chege (Defending and suing in his own behalf and on behalf of the Estate of Njeri Chege) v Jane Wairimu Kagoni & 2 others

Environment and Land Court
18 October 2023
JKJ G Kemei
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (J G Kemei, J) determined a Notice of Motion filed on 4/5/2023 by the appellant, Gabriel Muthua Chege, seeking stay of the orders of 4/5/2023 dismissing his appeal, reinstatement of the appeal and of earlier stay of execution orders, and enlargement of time to file submissions. The appeal, from the judgment in Gatundu MCELC No. E040 of 2021 (Hon H. M. Ng'ang'a, PM, delivered 31/8/2022), had been dismissed on 4/5/2023 because the parties failed to comply with directions of 14/3/2023 on filing written submissions. The appellant explained that counsel handling the matter, Advocate Erick Munene, had been out of office sick for about one and a half months, causing the default, and that an attempt to file submissions and arrest the judgment on 3/5/2023 was rebuffed because the file was already in chambers. The respondents opposed, contending the application was an abuse of process, an afterthought, and that having dismissed the appeal the court was functus officio, relying on Raila Odinga v IEBC and Section 99 of the Civil Procedure Act. The court held that a dismissal order is negative in nature and incapable of being stayed, but found the application filed timeously, the explanation of counsel's illness uncontroverted, and no prejudice since the respondents had also failed to comply with the directions. Allowing the application, the court set aside the dismissal, reinstated the appeal for determination, directed filing of written submissions within thirty days, reinstated the stay of execution orders, and - unusually - awarded costs of the application to the respondents.

Key legal issues

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01

Whether the dismissal of the appeal for non-filing of submissions could be set aside and the appeal reinstated notwithstanding the functus officio objection

Holding

The application was allowed: the dismissal orders were set aside, the appeal reinstated, timelines enlarged and the earlier stay of execution reinstated.

Reasoning

The court held the dismissal order was negative in nature and incapable of being stayed, but that the application was filed timeously on the same day as the dismissal. The explanation for the default - illness of counsel handling the matter - was uncontroverted. The respondents themselves had failed to comply with the directions, so no prejudice would flow from reinstatement, and the interest of justice favoured hearing the appeal on merit.

p. 4
02

Whether stay of execution could issue against the order dismissing the appeal

Holding

No stay could issue because a dismissal is a negative order with nothing to stay; the remedy was setting aside and reinstatement.

Reasoning

The court reasoned that stay orders presuppose a positive order capable of being held in abeyance. An order of dismissal does not direct any party to do anything, so there is nothing for the court to stay. The applicant's framing of the relief as a stay of the dismissal orders was conceptually flawed, but the court treated the substance of the motion as one for setting aside and reinstatement, which it granted.

p. 4

Legal principles established

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  • Stay orders cannot issue in respect of a negative order such as an order dismissing an appeal, as there is nothing to stay.
  • A court retains discretion to set aside its own dismissal order for non-compliance and reinstate an appeal where the application is filed timeously and no prejudice is shown.

Court orders

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  1. 1.The orders dismissing the appeal be and are hereby set aside
  2. 2.The appeal be and is hereby reinstated for determination
  3. 3.The parties shall file their written submissions within thirty (30) days
  4. 4.The orders of stay of execution issued on 14/11/2022 be and are hereby reinstated
  5. 5.Costs of the application shall be in favour of the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2) (also cited as 159(a) and (d))
  • Civil Procedure ActSection 99
  • Civil Procedure Rules, 2010Sections 1A and 3A

Cases cited (4)

  • Nicholas Kiptoo Arap Salat Vs. Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR

    Applicant for extension of time must provide a full, honest and acceptable explanation for the delay.

  • Edith Gichungu Koine Vs. Stephen Njagi Thoiti
    [2014] eKLR

    Factors guiding rule 4 discretion: delay, reasons, prejudice, public importance.

  • Christopher Kioi & Anor. Vs. Winnie Mukolwe & 3 Others
    (2013) eKLR

    Article 159(2) enjoins court to administer justice without undue regard to technicalities; leave not prejudicial.

  • Raila Odinga & 2 Others Vs. IEBC & 3 Others
    (2013) eKLR

    Functus officio doctrine expresses the principle of finality of decisions.

On appeal from
Principal Magistrate's Court at Gatundu
Gatundu MCELC No. E040 of 2021
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Sections 1A and 3A of the Civil Procedure Act (inherent power to reinstate and enlarge time)

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, "Gabriel Muthua Chege (Defending and suing in his own behalf and on behalf of the Estate of Njeri Chege) v Jane Wairimu Kagoni & 2 others", Case Analysis (2023). Environment and Land Appeal E076 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20898/eng@2023-10-18

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