Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 52 of 2019· [2024] KEELC 1200 (KLR)

Osangire v Opaye (Environment & Land Case 52 of 2019) [2024] KEELC 1200 (KLR)

Environment and Land Court
7 March 2024
3,282 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Busia refused to extend time for an appeal after an 18-month unexplained delay, and dismissed a bid to block execution of a land judgment.

What this practically means

#

Executive summary

#
John Isaac Osangire (Applicant) sought, by Notice of Motion dated 11th October 2023, leave for new advocates to come on record, extension of time to lodge and serve a Notice of Appeal, a stay of execution of the judgment of Omollo J delivered on 28th April 2022 (which ordered him to sub-divide the suit land and transfer 3½ acres to Benard Okapesi Ipaye, the Respondent) and of the ruling of 28th September 2023 directing surrender of the original title deed, and the setting aside of the proceedings and consequential decree pending an intended appeal. The application was opposed; the Respondent contended the decree had been served, the Applicant refused to comply, and the 18-month delay was inordinate and calculated to frustrate the judgment. Boaz N. Olao J allowed only the change of advocates. On extension of time, applying Mutiso and Salat, the court found the Applicant was present when judgment was delivered virtually, yet gave no explanation for 18 months of inaction; the delay was unreasonable and the Applicant had not approached the court with clean hands, having also disobeyed the ruling of 28th September 2023. On stay, none of the Order 42 Rule 6 conditions was met: no sufficient cause, no demonstrated substantial loss, unreasonable delay, and no offer of security, evidencing lack of good faith. On setting aside, the court held that a final judgment after a full hearing, and an inter-partes ruling, are not amenable to setting aside; the remedies are review or appeal. The motion was dismissed with costs.

Key legal issues

#
01

Whether extension of time to appeal should be granted

Holding

Refused; the 18-month delay was unreasonable and unexplained, and the Applicant's conduct showed no intention to appeal but an intention to frustrate execution

Reasoning

Applying Mutiso and Salat principles, the court weighed the length and reason of delay, the chances of the appeal and prejudice to the Respondent. The record showed the Applicant was present when judgment was delivered virtually on 28th April 2022. Nothing stopped him instructing another advocate to file a Notice of Appeal. The application filed 11th October 2023 came some 18 months later with no plausible explanation, and he had also disobeyed the ruling of 28th September 2023.

p. 4
02

Whether stay of execution pending appeal should be granted

Holding

Refused; none of the four conditions under Order 42 Rule 6 was satisfied

Reasoning

The Applicant had to show sufficient cause, substantial loss, absence of unreasonable delay and an offer of security. He merely alleged prejudice to himself and his siblings without explaining it; the application was brought 18 months late; no security was offered; and his refusal even to offer to deposit the original title deed in Court as a mark of good faith showed the application was not made in good faith but meant to frustrate the Respondent.

03

Whether the final judgment and inter-partes ruling could be set aside

Holding

Refused; the setting-aside remedy is unavailable for final judgments after full hearing

Reasoning

The judgment of 28th April 2022 was a final judgment rendered after both parties and their witnesses were heard, and the ruling of 28th September 2023 was delivered after an inter-partes hearing on affidavits and submissions. Neither was a default decision. Citing Kenya Power & Lighting Co Ltd v Benzene Holdings Ltd, the court held that the only routes open to a party aggrieved by a final judgment are review under Order 45 or appeal under Order 42.

Legal principles established

#
  • Extension of time is a discretionary equitable remedy; the applicant must explain the delay, and an unexplained inordinate delay indicates no intention to appeal
  • A stay of execution pending appeal requires sufficient cause, substantial loss, application without unreasonable delay and an offer of security
  • The Civil Procedure Rules contain no provision for setting aside a final judgment; the remedies are review under Order 45 or appeal under Order 42

Court orders

#
  1. 1.Prayer No. 2 of the Notice of Motion (leave for the firm of Ipapu P. Jackah & Company Advocates to come on record for the Applicant in place of the firm of M/S Ouma-Okutta & Associates Advocates) allowed
  2. 2.Prayer No. 3 of the Notice of Motion (the attached draft Notice of Change of Advocates deemed as duly filed and served) allowed
  3. 3.Prayer for extension of time to lodge and serve a Notice of Appeal declined
  4. 4.Prayer for stay of execution of the judgment of 28th April 2022 and the ruling of 28th September 2023 declined
  5. 5.Prayer for setting aside the proceedings and consequential decree/order declined
  6. 6.The Notice of Motion dated 11th October 2023 dismissed with costs

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Appellate Jurisdiction ActSection 7
  • Civil Procedure RulesOrder 3 Rules 6 and 7; Order 9 Rule 1; Order 21 Rule 22; Order 42 Rules 1(1), 6(1) and 6(2); Order 50 Rules 6 and 9; Order 51 Rules 1 and 3
  • Court of Appeal RulesRule 75(2)

Cases cited (8)

  • Leo Sila Mutiso v Hellen Wangari Mwangi
    Civil Application No NAI 255 of 1997 [1999 2 EA 231]
  • Nicholas Kiptooarap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    Supreme Court Application No 16 of 2014 [2014 eKLR]
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    C.A. Civil Application No. 91 of 2017 [2018 eKLR]
  • Vishram Ravji Halai & Another v Thornton & Turpin (1963) Ltd
    1990 KLR 365
  • Hon Attorney General v Law Society of Kenya & Another
    C.A. Civil Appeal No 133 of 2011
  • Kenya Shell Ltd v Kibiru & Another
    1986 KLR 410
  • Kenya Power & Lighting Company Ltd v Benzene Holdings Ltd t/a Wyco Paints
    C.A. Civil Appeal No 132 of 2014 NBI [2016 eKLR]
  • Christopher Wanga Simiti v David Wepukhulu Kasambula & Another (also reported as David Wepukhulu Kasambula & Another v Robert Sundwa Wangolo)
    Bungoma ELC Case No 177 of 2014 / 2018 eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Section 7 of the Appellate Jurisdiction Act; Order 42 Rules 1(1) and 6 and Order 51 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Osangire v Opaye (Environment & Land Case 52 of 2019) [2024] KEELC 1200 (KLR)", Case Analysis (2024). Environment & Land Case 52 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1200/eng@2024-03-07

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