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ELCDismissedBondo ELC Case No. E014 OF 2023 (Motion dated 11/08/2023)· [2024] KEELC 846 (KLR)

Nyawara & another (Suing/appealing as officials/trustees of Evangelical Church of Christ in Africa ECCA-Hera Mar Adier) v Marimu & another (Being sued as official/trustee of Church of Christ iin Africa CCA) (Environment & Land Miscellaneous Case 2 of 2023) [2024] KEELC 846 (KLR)

Environment and Land Court
22 February 2024
AKA. Y. Koross
2,262 words in judgment
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to extend time for a delayed appeal, ruling that blaming the court registry is no excuse when rulings are available online.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Siaya (Koross, J) determined a notice of motion dated 11/08/2023 in which the applicants sought leave to appeal out of time against a ruling of Hon. J.P. Nandi delivered on 29/06/2023 in Bondo ELC Case No. E014 OF 2023, and a stay of that ruling. The motion was brought under Section 16A(2) of the Environment and Land Court Act. The applicants blamed delay in filing on the trial court registry's failure to provide copies of the ruling. The respondents, through a replying affidavit, argued the applicants were indolent, that a striking-out order was incapable of being stayed, and that the intended appeal had no chance of success. The court framed three issues: stay, extension of time, and costs. On stay, applying Order 42 Rule 6(2) of the Civil Procedure Rules and George Ole Sangui v Kedong Ranch Limited, the court held that because the impugned ruling struck out the applicants' suit with costs, it issued negative orders which cannot be executed or stayed; that prayer failed. On extension of time, the court accepted that the delay of just over two weeks was not inordinate, but applying the Salat principles found the applicants had not explained the delay satisfactorily, as their letters to the registry were neither stamped nor uploaded, and the ruling was available on the e-filing portal on the day of delivery. Without a draft memorandum, the court could not find the appeal arguable. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the impugned ruling can be stayed

Holding

The prayer for stay fails because the impugned ruling issued negative orders save for costs, and negative orders cannot be stayed or executed.

Reasoning

The trial magistrate had struck out the applicants' suit as res judicata with costs. Relying on Order 42 Rule 6(2) and the decision in George Ole Sangui v Kedong Ranch, the court held that a dismissal order is not a positive order requiring any party to do or refrain from doing anything; it confers no relief and cannot be enforced, hence stay is unavailable.

p. 4
02

Whether leave to appeal out of time should be granted

Holding

Leave refused. Delay of just over two weeks was not inordinate, but no good and sufficient cause was shown and the intended appeal was not arguable.

Reasoning

Guided by Section 16A(2) of the ELC Act and the Salat principles, the court found the applicants filed only slightly outside the timeline, but their claim that the registry failed to provide the ruling was unproven since the letters were not stamped, uploaded or emailed, and the ruling was on the e-filing portal the day it was delivered. Absent a draft memorandum, arguability could not be established.

p. 6

Legal principles established

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  • A negative order (such as striking out/dismissal of a suit) is not capable of execution and therefore cannot be stayed
  • A party seeking extension of time bears the burden of laying a basis and explaining the delay to the satisfaction of the court

Court orders

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  1. 1.Notice of motion dated 11/08/2023 dismissed with costs to the respondents

Authorities

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Legislation

  • Environment and Land Court ActSection 16A(2)
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (5)

  • Tonui v National Bank of Kenya
    (Miscellaneous Civil Appeal E002 of 2022) [2022] KEHC 2977 (KLR)
  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Butt v Rent Restriction Tribunal
    [1979]
  • George Ole Sangui & 12 others v. Kedong Ranch Limited
    [2015] eKLR
  • Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited
    [2020] eKLR
On appeal from
Bondo ELC (trial court, Hon. J.P. Nandi)
Bondo ELC Case No. E014 OF 2023
Jurisdiction invoked
Section 16A(2) of the Environment and Land Court 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, "Nyawara & another (Suing/appealing as officials/trustees of Evangelical Church of Christ in Africa ECCA-Hera Mar Adier) v Marimu & another (Being sued as official/trustee of Church of Christ iin Africa CCA) (Environment & Land Miscellaneous Case 2 of 2023) [2024] KEELC 846 (KLR)", Case Analysis (2024). Bondo ELC Case No. E014 OF 2023 (Motion dated 11/08/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/846/eng@2024-02-22

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