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ELCAllowedBusia Chief Magistrate's Court Elc Case No 92 Of 2019 (application dated 10th November 2023)· [2024] KEELC 341 (KLR)

Madiang’i v Wandera (Environment and Land Miscellaneous Application E005 of 2023) [2024] KEELC 341 (KLR)

Environment and Land Court
30 January 2024
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court extended appeal time and halted eviction where judgment was delivered without the parties' knowledge, confirming parties must be notified of decisions.

What this practically means

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Executive summary

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Philip Madiangi, the 2nd defendant in Busia Chief Magistrate's Court ELC Case No 92 of 2019, in which Godfrey Anyimo Wandera obtained judgment on 11th September 2023 granting him vacant possession of parcel Samia-wakhungu/Odiado/1935 and dismissing the defendants' counter-claim, moved the Environment and Land Court by Notice of Motion dated 10th November 2023 seeking extension of time to appeal and stay of execution pending the intended appeal. The application, anchored on Order 42 Rule 6, Order 50, Sections 79G and 95 of the Civil Procedure Act and Section 16A of the Environment and Land Court Act, was unopposed; only the Applicant filed submissions. Applying the Salat guidelines, Boaz N. Olao J found good and sufficient cause in the fact that the judgment, initially scheduled for 21st July 2023, was instead delivered on 11th September 2023 in the absence of both parties and without notice; the Applicant learnt of it on 25th October 2023 and filed the application 14 days later. The court held that a judgment delivered surreptitiously denies parties the opportunity to exercise their appeal rights and that this alone justified extension of time. On stay, applying Order 42 Rule 6 and the Butt principles, the court found unrebutted evidence that eviction and possible transfer of the land to third parties would cause substantial loss and render the appeal nugatory, and that a stay would not prejudice the Respondent who would remain entitled to the land. The court allowed both prayers, directing the Applicant to file and serve the appeal within 15 days, staying execution and further proceedings pending the appeal, with no orders as to costs.

Key legal issues

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01

Extension of time to appeal out of time

Holding

Extension granted because the judgment was delivered without notice and in the absence of the parties, constituting good and sufficient cause; the Applicant also acted expeditiously upon learning of the judgment.

Reasoning

The court applied the Salat guidelines, noting the judgment scheduled for 21st July 2023 was instead delivered on 11th September 2023 without notice and with both parties absent. The Applicant learnt of it only on 25th October 2023 and filed the application on 10th November 2023. Unopposed, the averments were unrebutted and the delay explained.

p. 4
02

Stay of execution pending appeal

Holding

Stay granted: sufficient cause shown, substantial loss demonstrated (eviction and possible transfer to third parties rendering the appeal nugatory), application filed without unreasonable delay, and security dispensed with given the Applicant resides on the land.

Reasoning

The court applied Order 42 Rule 6 requirements and the Butt -v- Rent Restriction Tribunal principles. Unrebutted affidavit evidence showed eviction and possible sale to third parties would cause substantial loss and render the appeal nugatory. A stay would not prejudice the Respondent since the Applicant and family remain on the suit land.

p. 5

Legal principles established

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  • A judgment delivered in the absence of the parties without notice is itself good and sufficient cause to grant extension of time to appeal.
  • A judgment should not be delivered surreptitiously; parties are entitled to be convened of the court's decision.
  • Substantial loss is the cornerstone for granting a stay of execution.

Court orders

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  1. 1.The applicant shall file and serve his appeal within 15 days from the date of this ruling
  2. 2.An order staying the execution of the decree and any further proceedings in Busia CMC ELC Case No 92 of 2019 pending hearing and determination of the appeal or any orders of this court
  3. 3.There shall be no orders as to costs of this application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSections 3A and 63
  • Environment and Land Court ActSection 16A(1) and (2)
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 50 Rule 5 (and Rule 6)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat -v- Independent Electoral And Boundaries Commission & 7 Others
    Supreme Court Application No 16 of 2014 [2014 eKLR]
  • Attorney General -v- Law Society of Kenya & Another
    C.A. Civil Appeal No 133 of 2011
  • Fredrick Okeyo -v- Charles Okoth
    Busia Elc Miscellaneous Application No E006 of 2023
  • Kenya Shell Ltd -v- Kibiru & Another
    1986 KLR 410
  • Butt -v- Rent Restriction Tribunal
    1982 KLR 417
On appeal from
Busia Chief Magistrate's Court
Elc Case No 92 Of 2019
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Section 16A of the Environment and Land Court Act; Order 42 Rule 6 and Order 50 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, "Madiang’i v Wandera (Environment and Land Miscellaneous Application E005 of 2023) [2024] KEELC 341 (KLR)", Case Analysis (2024). Busia Chief Magistrate's Court Elc Case No 92 Of 2019 (application dated 10th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/341/eng@2024-01-30

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