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)
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
#Key legal issues
#Whether the Memorandum of Appeal filed nine days out of time should be deemed duly filed
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
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.
Whether stay of execution of the judgment and decree in Kericho CM ELC Cause No. E003 of 2022 should be granted
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
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.
Costs of the application
Costs were ordered to abide the outcome of the appeal rather than follow the event
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.
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.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.The Memorandum of Appeal dated 27/11/2023 and lodged on 27/11/2023 without leave shall be deemed duly filed.
- 3.Costs of the application shall abide the outcome of the appeal.
- 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.
- Mogeni v Koskei & another (Environment and Land Appeal E033 of 2023) [2024] KEELC 7032 (KLR)[2024] KEELC 7032 (KLR)24 Oct 2024
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.