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ELCAllowedNot stated in the judgment (Notice of Motion dated 31.01.2023, filed 02.02.2023)· [2024] KEELC 1019 (KLR)

Kaguna v Njeru (sued as the legal administrator of the Estate of Njeru M’Njama) & 3 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 1019 (KLR)

High Court of Kenya, Environment and Land Court
21 February 2024
2,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court let a landowner appeal five months late and stopped his eviction, showing courts will excuse explained advocate-caused delays.

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 Embu (A. Kaniaru, J) on a Notice of Motion dated 31.01.2023 by Gregory Mwaniki Kaguna, the plaintiff before the lower court at Runyenjes, seeking leave to appeal out of time and stay of execution of the judgment of Senior Principal Magistrate J.W Gichimu delivered on 23.08.2022, which found the 2nd Respondent to be the registered proprietor of the suit land and allowed his application to evict the Applicant. The Applicant explained the roughly 5-month delay by the illness and conduct of his former advocate and by the late issuance of the certified judgment, evidenced by a Certificate of Delay showing the request was made on 02.09.2022 and the copy issued on 28.11.2022. The 2nd Respondent opposed, alleging the application was a delay tactic and asking for security; the 3rd and 4th Respondents filed Grounds of Opposition, arguing no reasonable explanation for the delay. The court framed two issues: entitlement to leave to appeal out of time under Sections 79G and 95 of the Civil Procedure Act, and entitlement to stay of execution under Order 42 Rule 6. Applying the factors in Edith Gichungu Koine and Butt v Rent Restriction Tribunal, the court held the delay inordinate but sufficiently explained, found no prejudice to the respondents, and held that eviction from land the Applicant has occupied for over 40 years amounts to substantial loss. The application was allowed: leave to file the appeal within 30 days, stay of execution pending appeal, record of appeal within 30 days, Kshs. 40,000/= deposited as security within 14 days, and costs in the cause.

Key legal issues

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01

Leave to file an appeal out of time

Holding

Leave granted; the 5-month delay was inordinate but sufficiently explained by the former advocate's illness and late issuance of the certified judgment.

Reasoning

Under Section 79G of the Civil Procedure Act an appeal may be admitted out of time on good and sufficient cause, and Section 95 empowers the court to enlarge time. Guided by Edith Gichungu Koine, the court weighed the delay (about 5 months), the explanation (advocate's illness and delay in supply of the judgment, confirmed by a Certificate of Delay), and the absence of prejudice to the respondents. Denying the extension would shut the applicant out without being heard and occasion injustice.

p. 3
02

Stay of execution pending appeal

Holding

Stay granted; substantial loss (eviction from occupied land) was established and the delay was explained, with security directed by the court.

Reasoning

Order 42 Rule 6 requires substantial loss, absence of unreasonable delay, and security. The applicant had occupied the suit land for over 40 years, a fact not denied, and the lower court had allowed his eviction. The delay of about 5 months was found sufficiently explained. Though the applicant did not offer security expressly, the court exercised its discretion to direct a deposit of Kshs. 40,000/= as security for costs, following the guidance in Butt v Rent Restriction Tribunal.

p. 5

Legal principles established

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  • A delay in filing an appeal, though inordinate, may be excused if sufficiently explained, including where attributable to an advocate's failure.
  • Factors for extending time include the period of delay, reasons for the delay, and prejudice to the respondent.
  • Being evicted from land one occupies where the lower court ordered eviction amounts to substantial loss for stay of execution purposes.

Court orders

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  1. 1.The Applicant is granted leave to file an appeal out of time within the next 30 days.
  2. 2.There shall be a stay of execution of the judgement delivered on 23.08.2022 pending the hearing and determination of the Appeal.
  3. 3.The Applicant to file and serve the Record of Appeal within the next 30 days of this ruling.
  4. 4.The Applicant to deposit the sum of Kshs. 40,000/= in court within the next 14 days as security for costs.
  5. 5.Costs of the application to be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (6)

  • Edith Gichungu Koine v Stephen Njagi Thoithi
    [2014] eKLR
  • Stecol Corporation Limited v Susan Awuor Mudembu
    [2021] eKLR
  • Giuliano Zanette t/a Mediterraneo Restaurant v Amache
    (Appeal E006 of 2021) [2023] KEELRC 329 (KLR)
  • Factory Guard Limited v Abel Vundi Kitungi
  • Butt v Rent Restriction Tribunal
    {1982} KLR 417
  • Francis K. Chabari & another v Mwarania Gaichura Kairubi
    [2022] eKLR
On appeal from
Runyenjes (Senior Principal Magistrate's Court)
Not stated in the judgment
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 (intended appeal from subordinate court)

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, "Kaguna v Njeru (sued as the legal administrator of the Estate of Njeru M’Njama) & 3 others (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 1019 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 31.01.2023, filed 02.02.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1019/eng@2024-02-21

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