Mutie v Galgalo (Environment and Land Appeal E001 of 2022) [2024] KEELC 3655 (KLR)
The bottom line
#A Kenyan High Court stopped eviction of an appellant pending appeal, but he must deposit KES 100,000 within 21 days or the protection lapses automatically.
What this practically means
#Executive summary
#Key legal issues
#Change of advocate after judgment
Leave was granted as the applicant complied with Order 9 Rule 9 of the Civil Procedure Rules, 2010.
Order 9 Rule 9 provides that a change of advocate after judgment has been passed shall not be effected without an order of the court, made upon an application with notice to all parties or upon a consent between the outgoing and incoming advocates. The court found the applicant had complied with these provisions and granted leave for the incoming firm to come on record.
Stay of execution pending appeal
Stay granted: substantial loss proved (risk of eviction), application made without unreasonable delay, and security can be directed by the court.
The court applied the Order 42 Rule 6 conditions and the Butt v Rent Restriction Tribunal guidelines. It found the applicant would suffer substantial loss if evicted from the suit property; the application filed on 15th November 2022 after the new advocates were instructed was held to be without unreasonable delay despite judgment being delivered on 17th December 2021; and the absence of offered security was cured by directing a deposit of Kshs. 100,000/= within 21 days, default whereof the stay lapses automatically.
Leave to amend the memorandum of appeal
Leave granted notwithstanding the absence of an annexed draft amended memorandum, subject to the principles governing amendment and the respondent's right to object.
Section 100 of the Civil Procedure Act permits the court to amend any defect or error at any stage. Applying the Central Kenya Ltd v Trust Bank Ltd principles, the court held that although no draft amended memorandum was annexed, the applicant is obliged to uphold the governing principles, and the respondent may object to the amended memorandum should any prejudice or injustice be occasioned.
Legal principles established
#- An applicant for stay of execution must prove, not merely assert, that he will suffer substantial loss.
- Where an applicant has not offered security for costs, the court may direct him to furnish it.
Court orders
#- 1.Leave granted to the firm of M/s Andrew Makundi & Co. Advocates to come on record in place of the firm of M/s C. M. Muthiani & Co. Advocates for the Appellant/Applicant
- 2.An order of stay of execution of the judgment delivered by Hon. J. O. Magori, SPM on 17th December, 2021 and all consequential orders issued thereafter, pending the hearing and determination of the intended appeal
- 3.The Applicant shall deposit Kshs. 100,000/= within twenty-one (21) days from the date of the ruling and in default the stay orders shall automatically lapse
- 4.Leave granted to the Appellant/Applicant to amend his memorandum of appeal filed on 5th January, 2022 upon payment of the requisite court fees
- 5.Costs to abide with the outcome of the Appeal
- On appeal from
- Makindu Senior Principal Magistrate's Court
- Makindu SPMCC No. 10 of 2011
- Jurisdiction invoked
- Article 50 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 Rules 9 and 10 and Order 22 Rule 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutie v Galgalo (Environment and Land Appeal E001 of 2022) [2024] KEELC 3655 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 14th November, 2022; appeal from Makindu SPMCC No. 10 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3655/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.