Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment extract· [2024] KEELC 3562 (KLR)

Keeping v Joreth Limited & 2 others (Enviromental and Land Originating Summons 618 of 2015) [2024] KEELC 3562 (KLR)

High Court of Kenya
11 April 2024
1,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The High Court allowed a delayed Kenyan appeal to proceed but only on condition the plaintiff deposits Kshs 1,595,561 as security.

What this practically means

#

Executive summary

#
The Plaintiff/Applicant moved the court by an application dated 18 March 2024 seeking a stay of execution of a judgment delivered on 12 June 2023 and leave to file a notice of appeal out of time, with the notice filed on 30 June 2023 deemed duly filed. The application was opposed by the 3rd Defendant, Kenneth Akide, who swore a replying affidavit on 5 April 2024 arguing that the notice of appeal had been filed late by the previous advocates with the plaintiff's instructions, that the eight-month delay in moving the court was inexcusable, and that the application was an abuse of process, filed only when execution loomed. Counsel Githinji appeared for the plaintiff and Muriithi for the respondents in oral submissions. The court held that stay of execution is a discretionary power to be exercised judiciously, and found that the supporting affidavit contained no explanation of the plaintiff's efforts to follow up with his previous advocates, emphasizing that cases belong to parties, not advocates. However, applying Article 50 of the Constitution and the guidance in Butt v Rent Restriction Tribunal, the court held the appeal right should not be rendered nugatory. Balancing the parties' interests, it granted a conditional stay directing the plaintiff to deposit Kshs 1,595,561 in a joint interest-earning account in the names of the advocates on record within 90 days, failing which the stay lapses. The court found the four-day delay in lodging the notice of appeal not inordinate and granted leave, deeming the notice duly filed, to be served within seven days. Costs were awarded to the 2nd and 3rd Respondents.

Key legal issues

#
01

Stay of execution pending appeal

Holding

Stay granted on condition that the applicant deposits the decretal sum of Kshs 1,595,561 in a joint interest-earning account within 90 days

Reasoning

Stay is a discretionary power to be exercised judiciously. Guided by Butt v Rent Restriction Tribunal, a stay should not prevent an appeal being rendered nugatory, but since the applicant moved only when execution loomed, the interests of both parties required balancing through a conditional stay with security under Order 42 rule 6(2).

p. 3
02

Extension of time to file notice of appeal

Holding

Leave granted; the four-day delay in filing the notice of appeal was not inordinate and no prejudice would be suffered

Reasoning

The court found the notice of appeal was lodged only four days late, which it held was not inordinate delay. It also reasoned that the defendants would suffer no prejudice if time were extended, and accordingly deemed the notice of appeal filed on 30 June 2023 as duly filed.

p. 3
03

Explanation for delay in bringing the application

Holding

The plaintiff gave no satisfactory explanation for the eight-month delay; parties must follow up on their own cases

Reasoning

The court perused the supporting affidavit and found no paragraph explaining how the plaintiff tried to contact his advocate about the case's status. There was no evidence of correspondence or visits to the previous advocate's office, and the plaintiff acted only when execution commenced.

p. 2

Legal principles established

#
  • Cases belong to parties, not advocates; a litigant who instructs advocates is under a duty to follow up on the progress of the case
  • Where a plaintiff comes to court only after execution steps have begun, fairness calls for a conditional stay with security

Court orders

#
  1. 1.Conditional stay of execution granted: the Plaintiff to deposit Kshs 1,595,561 (the amounts contained in the warrant of execution) in a joint interest-earning account in the names of the advocates on record
  2. 2.The deposit to be made within 90 days of the order, in default the stay lapses
  3. 3.Leave granted to file the notice of appeal out of time; the notice of appeal filed on 30 June 2023 deemed duly filed
  4. 4.The notice of appeal to be served upon the respondents within seven days
  5. 5.Costs of the application awarded to the 2nd and 3rd Respondents

Authorities

#

Legislation

  • Appellate Jurisdiction Act (CAP)Section 7
  • Constitution of Kenya, 2010Article 50
  • Civil Procedure RulesOrder 42 rule 6 sub-rule 2

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • HGE v SM
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act and Order 42 of the Civil Procedure Rules; Article 50 of the Constitution of Kenya, 2010 (right of appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Keeping v Joreth Limited & 2 others (Enviromental and Land Originating Summons 618 of 2015) [2024] KEELC 3562 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3562/eng@2024-04-11

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