Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKericho ELC Appeal arising from Kericho CM ELC Cause No. E003 of 2022 (Notice of Motion dated 27th November, 2023)· [2024] KEELC 3835 (KLR)

Sang (Suing as the Legal Representative of the Estate of Kipsang Misoi - Deceased) & 2 others v Bengat (Environment and Land Appeal E006 of 2023) [2024] KEELC 3835 (KLR)

Environment and Land Court of Kenya
9 May 2024
5,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

The court let a late land appeal proceed, but refused to stop execution because a dismissal order cannot be stayed.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined a Notice of Motion dated 27th November 2023 by the Appellants/Applicants, who sought to have their Memorandum of Appeal lodged on 27th November 2023 deemed duly filed, or alternatively leave to appeal out of time against a ruling of Hon. F. M. Nyakundi PM delivered on 18th October 2023 in Kericho CM ELC Cause No. E003 of 2022, and stay of execution of the decree in that suit. The ruling below had dismissed their application to set aside an ex parte judgment entered against them on 13th May 2022 in default of appearance in a land dispute over Kericho/Kebeneti/2599, following an irregular transmission of the property of the late Kipsang Arap Misoi. The Respondent opposed, contending the applicants disregarded court processes, the appeal was filed out of time without sufficient explanation, and execution was already complete. The court framed three issues: deeming of the appeal, stay of execution, and costs. Applying Section 79G of the Civil Procedure Act and the extension-of-time factors in Stecol Corporation Limited v Susan Awuor Mudemb, the court found the nine-day delay sufficiently explained by the pursuit of certified proceedings and no prejudice shown by the Respondent, and granted leave to appeal out of time and deemed the memorandum duly filed. However, it refused stay of execution, holding that the appeal targets the ruling of 18th October 2023, which was a negative order of dismissal incapable of stay, and that no appeal had been lodged against the ex parte judgment itself. Costs of the application were ordered to abide the outcome of the appeal.

Key legal issues

#
01

Whether the Memorandum of Appeal filed nine days out of time should be deemed duly filed

Holding

The nine-day delay was sufficiently explained by the pursuit of certified copies of proceedings, the respondent showed no prejudice, and leave to file out of time was granted with the memorandum deemed duly filed

Reasoning

The appeal was filed on 27th November 2023 against a ruling delivered on 18th October 2023, nine days late. The applicants produced a letter dated 6th November 2023 requesting certified copies. The court applied the factors in Stecol Corporation Limited v Susan Awuor Mudemb and held the delay explained and no prejudice demonstrated by the respondent, invoking the overriding objective and Article 159.

p. 9
02

Whether stay of execution of the judgment and decree in Kericho CM ELC Cause No. E003 of 2022 should be granted

Holding

Stay was refused because the appeal targets the ruling dismissing the setting-aside application, which is a negative order incapable of stay, and no appeal lies against the ex parte judgment

Reasoning

The court noted the applicants interchangeably referred to the ruling as a judgment, but the filed appeal is against the 18th October 2023 ruling which dismissed the application to set aside the ex parte judgment. It would be absurd to stay a judgment where no appeal has been lodged; a dismissal is a negative order incapable of stay per Joseph Muthuri v Cooperative Bank.

p. 10
03

Costs of the application

Holding

Costs were ordered to abide the outcome of the appeal rather than follow the event

Reasoning

Though Section 27 of the Civil Procedure Act provides that costs follow the event per Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court in its discretion directed that costs of the application abide the appeal's outcome, reflecting the interlocutory and provisional nature of the leave granted.

p. 12

Legal principles established

#
  • An appeal filed out of time can be deemed as duly filed once the conditions for filing an appeal out of time under the proviso to Section 79G of the Civil Procedure Act have been met.
  • A negative order of dismissal is incapable of execution and cannot be stayed.
  • In applications for extension of time, the court considers the period of delay, reasons for the delay, degree of prejudice to the respondent and whether the matter raises issues of public importance.

Court orders

#
  1. 1.Leave is hereby granted to the Appellants/Applicants to file appeal out of time against the ruling and order of the subordinate court delivered on 18th October, 2023.
  2. 2.The Memorandum of Appeal dated 27/11/2023 and lodged on 27/11/2023 without leave shall be deemed duly filed.
  3. 3.Costs of the application shall abide the outcome of the appeal.

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27, 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6; Order 50 Rules 6, 22 & 25
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticles 10, 50, 159(1)

Cases cited (15)

  • Nicholas Kiptoo Arap Korir Salat vs The Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Elisha Jaboya vs Kennedy Odhiambo Nyaoro
    [2021] eKLR
  • Stecol Corporation Limited v Susan Awuor Mudemb
    [2021] eKLR
  • Stanley Kangethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Francis Likhabila vs Barclays Bank of Kenya
    [2020] eKLR
  • Charles Karanja Kiiru Vs Charles Githinji Muigwa
    CA 71/2016 [2017] eKLR
  • Wanjiru Mwangi & Another
    [2015] eKLR
  • APA Insurance Co. Ltd Vs Michael Kinyanjui Muturi
    [2016] eKLR
  • Edith Gichungu Koine Vs Stephen Njagi Thoithi
    [2014] eKLR
  • Gerald M'Limbine Vs Joseph Kangangi
    [2009] eKLR
  • Kamlesh Mansukhalal Damji Pattni v Director of Public Prosecutions & 3 others
    [2015] eKLR
  • Victory Construction Vs BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Joseph Muthuri & 32 others v Cooperative Bank Limited & 15 others
    [2018] eKLR
  • Raymond M Omboga v Austine Pyan Maranga
    Kisii HCCA Number 15 of 2010
  • Hussein Janmohamed & Sons vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court, Kericho (ELC)
Kericho CM ELC Cause No. E003 of 2022
Jurisdiction invoked
Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act; Order 42 Rule 6 and Order 50 of the Civil Procedure Rules; Section 13 of the Environment and Land Court Act; Articles 50 and 159 of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Sang (Suing as the Legal Representative of the Estate of Kipsang Misoi - Deceased) & 2 others v Bengat (Environment and Land Appeal E006 of 2023) [2024] KEELC 3835 (KLR)", Case Analysis (2024). Kericho ELC Appeal arising from Kericho CM ELC Cause No. E003 of 2022 (Notice of Motion dated 27th November, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3835/eng@2024-05-09

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