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ELCPartially AllowedMiscellaneous Application dated 4/1/2023 (arising from Gatundu SPMC E & L Case No E009 of 2021)· [2024] KEELC 417 (KLR)

Kinyanjui v Kariuki & 12 others (1st - 4th Respondents being sued for and on behalf of the Estate of Kariuki Maina - Deceased) (Miscellaneous Application 1 of 2023) [2024] KEELC 417 (KLR)

Environment and Land Court
31 January 2024
1,603 words in judgment
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The bottom line

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A Kenyan landowner who missed a judgment got extra time to appeal because he was never notified, but his request to halt enforcement was premature.

What this practically means

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Executive summary

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The applicant, Nduati Kinyanjui, moved the Environment and Land Court at Thika by notice of motion dated 4/1/2023 seeking enlargement of time to lodge an appeal against the judgment of Hon H M Ng'ang'a delivered on 12/10/2022 in Gatundu SPMC E & L Case No E009 of 2021, which cancelled the title to land parcel Kiganjo/Handege/2876 and decreed registration in favour of the 1st to 4th respondents, together with a stay of execution pending the intended appeal. He explained the delay by asserting he had no notice of delivery of the judgment and was absent when it was rendered. The 1st to 4th respondents, the 7th respondent and the 10th respondent opposed, contending the applicant was present at delivery, was indolent, and that the appeal lacks merit. The court framed two issues: whether the criteria for enlarging time were met, and whether conditions for stay of execution were satisfied. Applying the Supreme Court's Salat criteria, and noting that the limitation period under Section 79G of the Civil Procedure Act lapsed on or about 11/11/2022, the court found that the coram of the impugned judgment showed the applicant absent and that the respondents produced no proof of his presence, so leave to appeal out of time was merited. However, the plea for stay of execution, brought more than 15 months after judgment and with no competent appeal on record, was held premature; the applicant was granted liberty to renew it on the platform of the intended appeal. The motion was thus partially allowed, with each party bearing their own costs.

Key legal issues

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01

Whether the criteria for enlargement of time to initiate an appeal were satisfied

Holding

The plea for leave to appeal out of time was merited because the applicant was absent at delivery of the judgment, as the coram of the impugned judgment confirms, and the respondents produced no evidence that he was present or notified

Reasoning

The court applied the Salat criteria for extension of time. The limitation period under Section 79G of the Civil Procedure Act and Order 50 rule 4 lapsed on or about 11/11/2022. The applicant's explanation was lack of notice of delivery of judgment and absence. Although respondents alleged the applicant was present when the judgment date was fixed and during delivery, none produced evidence of this. The coram of the impugned judgment showed the applicant absent. The discretion was accordingly exercised in his favour.

p. 3
02

Whether conditions for stay of execution pending appeal under Order 42 rule 6(2) were satisfied

Holding

The plea for stay was premature because no competent appeal was on record and the court could not be certain the contemplated appeal would be filed; leave given to renew the plea on the appeal platform

Reasoning

Order 42 rule 6(2) requires substantial loss, application without unreasonable delay, and security. The court noted it was being invited to grant stay more than 15 months after judgment and, crucially, was not seized of a competent appeal, so it could not be certain the contemplated appeal would be filed and served. Rather than refuse outright, it reserved the applicant's right to renew the application once the appeal is lodged.

p. 4

Legal principles established

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  • Extension of time is not a right of a party; it is an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis for it
  • Where the coram on the face of the impugned judgment shows a party was absent at delivery and the respondents produce no proof of attendance, the explanation for delay in lodging the appeal is accepted and leave to appeal out of time is merited
  • Stay of execution under Order 42 rule 6(2) cannot properly be granted in a miscellaneous application where no competent appeal is yet on record; the plea is premature and should be pursued on the platform of the intended appeal

Court orders

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  1. 1.The limitation period for lodging an appeal against the Judgment rendered on 12/10/2022 in Gatundu SPMC E & L Case No E009 of 2021 is enlarged by 7 days from 31 January 2024
  2. 2.The intended appellant shall file and serve the record of appeal and brief written submissions within 30 days from the date of lodging the memorandum of appeal
  3. 3.The applicant is at liberty to renew the plea for an order of stay of execution on the platform of the intended appeal
  4. 4.Parties shall bear their respective costs of the miscellaneous application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 rule 4
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (1)

  • Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
On appeal from
Senior Principal Magistrate's Court at Gatundu
Gatundu SPMC E & L Case No E009 of 2021
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 50 rule 4 of the Civil Procedure Rules (jurisdiction to enlarge time for initiating an appeal)

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, "Kinyanjui v Kariuki & 12 others (1st - 4th Respondents being sued for and on behalf of the Estate of Kariuki Maina - Deceased) (Miscellaneous Application 1 of 2023) [2024] KEELC 417 (KLR)", Case Analysis (2024). Miscellaneous Application dated 4/1/2023 (arising from Gatundu SPMC E & L Case No E009 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/417/eng@2024-01-31

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