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ELCDismissedELC Appeal No 60 of 2019 (Notice of Motion dated 11th December 2023)· [2024] KEELC 447 (KLR)

Maingi & 3 others v Ndumi & another (Environment and Land Appeal E012 of 2023) [2024] KEELC 447 (KLR)

Environment and Land Court
1 February 2024
ANA. NYUKURI
1,463 words in judgment
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The bottom line

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The Environment and Land Court refused to give a losing land occupier more time to vacate, because he waited over fourteen months after losing his appeal before acting.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Nyukuri J) on a Notice of Motion dated 11th December 2023 filed by the 1st applicant/appellant, Patrick Mulwa Maingi, within ELC Appeal No 60 of 2019. The applicant sought enlargement of time to comply with the ruling of 26th July 2023, by which the lower court gave the appellants sixty days to vacate LR Mavoko Block 3/4412, failing which they would be evicted; alternatively he sought one year to vacate, citing his occupation of over twenty years, substantial development including a permanent matrimonial home, and family circumstances including a grandson who had sat KCPE. The 2nd respondent, Jefierson Musyoki Paul, opposed through a replying affidavit, showing that judgment was entered against the applicant on 23rd October 2019 in Machakos CMCC No 793 of 2013, the appeal (ELC Appeal No 60 of 2019) was dismissed on 19th September 2022 with costs, and the applicant had had ample time to vacate, being a trespasser against the registered proprietor's Article 40 rights. The court identified a single issue: whether the applicant deserved the orders sought. Relying on Order 50 rule 6 of the Civil Procedure Rules and the Nick Salat criteria, the court held that extension of time is an equitable, discretionary remedy. The finding that the applicants' occupation was unlawful was final and never set aside; the applicant did nothing for over fourteen months after the dismissal of his appeal and moved court only upon being served with the July 2023 orders, showing bad faith. The excuses for non-compliance were held not plausible and the application an abuse of process. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether enlargement of time to comply with vacation/eviction orders should be granted

Holding

Refused. The applicant had over fourteen months since the dismissal of his appeal on 19th September 2022 to arrange vacation, acted only after being served with the July 2023 orders, and his excuses were implausible; the application was an abuse of process

Reasoning

The court applied the Nick Salat criteria for extension of time: it is an equitable remedy requiring a deserving party, a reasonable explanation for delay and absence of prejudice. The applicant's unlawful occupation was conclusively established and never set aside; he stayed put after losing his appeal and only moved court upon being served with eviction orders. The delay of over fourteen months was unexplained, showing bad faith, justifying dismissal with costs.

p. 3

Legal principles established

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  • The power to enlarge time is discretionary and must be exercised judiciously; extension of time is an equitable relief and the applicant must explain the delay to the satisfaction of the court

Court orders

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  1. 1.The Notice of Motion dated 11th December 2023 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 rule 6
  • Constitution of Kenya 2010Article 40

Cases cited (1)

  • Nick Salat v Independent Electoral & Boundaries Commission & 7 others
    [2014] KLR SCK
On appeal from
Chief Magistrate's Court, Machakos
CMCC No 793 of 2013 (Irene Ndumi & another v Patrick Mulwa Maingi and 3 others)
Jurisdiction invoked
Order 50 rule 6 of the Civil Procedure Rules (power of the court to 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, "Maingi & 3 others v Ndumi & another (Environment and Land Appeal E012 of 2023) [2024] KEELC 447 (KLR)", Case Analysis (2024). ELC Appeal No 60 of 2019 (Notice of Motion dated 11th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/447/eng@2024-02-01

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