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ELCDismissedRuling on Notice of Motion dated 17th October 2023 (arising from Mombasa Chief Magistrates Court Civil Suit No 80B of 2022)· [2024] KEELC 312 (KLR)

Kagoro v Zomolo (Environment and Land Appeal E033 of 2023) [2024] KEELC 312 (KLR)

High Court of Kenya
31 January 2024
NMN.A. Matheka
1,348 words in judgment
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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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The Applicant moved the High Court by a notice of motion dated 17th October 2023 under Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act, Order 42 Rule 6(1 & 2) and Order 51 Rule 10 of the Civil Procedure Rules. He sought certification as urgent, stay of execution of the decree in Mombasa Chief Magistrates Court Civil Suit No 80B of 2022 pending the hearing of the application and of an intended appeal, leave to appeal out of time against the judgment of the learned trial Magistrate delivered on 18th May 2023 without notice to the parties, that the annexed memorandum of appeal be deemed duly filed and served, and costs. The trial court had entered judgment in the absence of both parties and their advocates, granting a permanent injunction restraining the Defendant from trespassing on Plot No MN/11/9195 (Original No 9128/68) Mombasa, ordering demolition of structures and eviction. The Applicant's counsel said he learned of the judgment only when served with the decree extracted on 29th September 2023. The court considered Section 79G and the governing principles from Mugo v Wanjiru, Edith Gichungu Koine v Stephen Njagi Thoithi and Nicholas Kiptoo Arap Korir Salat v IEBC. It held that the intended appeal ought to have been filed before or together with the extension application, found the excuse for the delay casual and unacceptable, held that the applicant had no arguable appeal, was guilty of inordinate delay and that the application was an afterthought. The application was dismissed with costs to the Respondent on 31st January 2024.

Key legal issues

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01

Extension of time to file appeal under Section 79G of the Civil Procedure Act

Holding

The application failed because the excuse for the delay was casual and unacceptable, the applicant was guilty of inordinate delay, and the applicant did not demonstrate an arguable appeal

Reasoning

Section 79G requires an appeal to be filed within thirty days of the decree, subject to admission out of time on good and sufficient cause. The court applied the factors from Mugo v Wanjiru and Salat: period of delay, reasons, prejudice and overriding objective. Judgment was delivered on 18th May 2023 and the application filed on 23rd October 2023, an inordinate and unexplained delay. The applicant had also not filed the intended appeal before or with the application, only a draft memorandum, indicating no arguable appeal.

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02

Stay of execution pending appeal

Holding

Stay of execution was refused as the application seeking it was dismissed for lack of merit

Reasoning

The stay prayers were tied to the intended appeal under Order 42 Rule 6. Since the court found no arguable appeal and inordinate, unexplained delay, the foundation for stay fell away and both the inter partes and pending-appeal stay prayers were refused along with the main application.

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Legal principles established

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  • The intended appeal ought to have been filed before or together with an application seeking leave to extend time for filing an appeal
  • In considering an application for extension of time, the court considers the period of delay, reasons for the delay, prejudice to the respondent, and whether issues of public importance are raised
  • Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court

Court orders

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  1. 1.The application dated 17th October 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondent
On appeal from
Chief Magistrates Court, Mombasa
Civil Suit No 80B of 2022
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Order 42 Rule 6(1 & 2) and Order 51 Rule 10 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, "Kagoro v Zomolo (Environment and Land Appeal E033 of 2023) [2024] KEELC 312 (KLR)", Case Analysis (2024). Ruling on Notice of Motion dated 17th October 2023 (arising from Mombasa Chief Magistrates Court Civil Suit No 80B of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/312/eng@2024-01-31

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