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ELCDismissedEnvironment and Land Appeal E027 of 2023· [2023] KEELC 20992 (KLR)

Omuga & another v Ndung'u alias Lily Umazi Kadzo & 4 others

Environment and Land Court
25 October 2023
NMN.A. MATHEKA
3,009 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa struck out an appeal filed late without permission and refused to halt execution of the judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (N.A. Matheka, J) determined two applications arising from an appeal against the judgment of Hon. M.L Nabibya (SPM) delivered on March 23, 2023 in Mombasa CMCC ELC No. 45 of 2018 consolidated with CMCC ELC No. 136 of 2020. The trial court had ordered reversion of title to Mombasa/Mwembelegeza/1167 to the estate of Juma Khamis Mbarak (deceased) and refund of the purchase price. The 1st appellant sought stay of execution under Order 42 Rule 6 and Order 51 Rule 1; the 2nd appellant sought injunctions restraining dealings with the suit property pending appeal. Respondents opposed, arguing the 2nd appellant's appeal was filed out of time without leave and was therefore a nullity, and that the applications were abusive and prejudicial to elderly beneficiaries awaiting closure of their father's estate. The court restated the Order 42 Rule 6 conditions - substantial loss, no unreasonable delay and security - and the arguability/nugatory principles from Reliance Bank, Chris Munga N. Bichange, Mohamed Salim and Carter & Sons. On the record, the title had already reverted to the original owner, leaving only a money decree. The court held the 2nd appellant's appeal, filed on May 2, 2023 after the March 23, 2023 judgment without leave, was incompetent and struck it off. It found the intended appeal not arguable and frivolous, no nugatory risk established, and the stay conditions unmet. Both applications were dismissed with costs.

Key legal issues

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01

Competence of an appeal filed out of time without leave

Holding

The 2nd appellant's appeal filed out of time without leave is struck off as a nullity

Reasoning

The judgment appealed from was delivered on March 23, 2023 but the Memorandum of Appeal was filed on May 2, 2023 without leave. The court held such an appeal is incompetent and struck it off, which also disposed of the stay application founded on it.

02

Conditions for stay of execution under Order 42 Rule 6

Holding

The applicants failed to demonstrate substantial loss, absence of unreasonable delay and provision of security; the appeal was also found frivolous and not arguable

Reasoning

The court restated the Order 42 Rule 6 conditions and the arguability/nugatory tests from Reliance Bank and Chris Munga N. Bichange. It found the intended appeal not arguable, no nugatory risk, and noted the decree had largely been executed, leaving only a money decree.

Legal principles established

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  • An appeal filed out of time without leave of the court is a nullity and liable to be struck out
  • Stay of execution requires substantial loss, application without unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.The 2nd appellant's appeal filed out of time without leave is struck off
  2. 2.The applications dated May 16, 2023 and July 19, 2023 are dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2), Rule 6(6); Order 51 Rule 1; Order 57 Rule 1
  • Civil Procedure Actsections 1A, 1B, 3, 3A and 63(e)
  • Environment and Land Court Actsections 13(7), 18(c) and 19(2)
  • Constitution of Kenyaarticles 50 and 159

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)

    Stay pending appeal requires an arguable appeal and that the appeal not be rendered nugatory

  • Chris Munga N. Bichange v Richard Nyagaka Tongi & 2 others
    eKLR

    Both limbs - arguability and nugatory - must be demonstrated for stay

  • Mohamed Salim T/A Choice Butchery v Nasserpuria Memon Jamat
    [2013] eKLR

    Right of appeal must be balanced against the plaintiff's right to enjoy the fruits of judgment

  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 others
    Civil Appeal No. 291 of 1997

    Sufficient cause, substantial loss, security and no unreasonable delay for stay

On appeal from
Chief Magistrate's Court at Mombasa
Mombasa CMCC ELC No. 45 of 2018 consolidated with CMCC ELC No. 136 of 2020
Jurisdiction invoked
Appellate jurisdiction under the Environment and Land Court Act; applications under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, section 3A of the Civil Procedure Act

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, "Omuga & another v Ndung'u alias Lily Umazi Kadzo & 4 others", Case Analysis (2023). Environment and Land Appeal E027 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20992/eng@2023-10-25

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