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ELCDismissedELC Case No. 6 of 2020· [2024] KEELC 3900 (KLR)

Musa (Suing as the next friend of Khatija Issak Musa) v Musa & 6 others (Environment & Land Case 6 of 2020) [2024] KEELC 3900 (KLR)

Environment and Land Court
30 April 2024
CMCharles G. Mbogo
2,457 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Narok refused to pause execution of a Kshs. 38.4 million decree because the applicant filed her appeal notice three days late without permission.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Narok (Hon. Mbogo C.G., Judge) on a Notice of Motion dated 28th December 2023 by the plaintiff/applicant seeking stay of execution of the decree arising from judgment delivered by the same court on 31st October 2023, in which the 2nd, 5th, 6th and 7th defendants/respondents succeeded. The applicant, aggrieved, filed a notice of appeal and sought stay under Order 42 Rule 6 of the Civil Procedure Rules, arguing the appeal would be rendered nugatory, that the respondent was a man of straw incapable of refunding the decretal sum of Kshs. 38,473,500/-, that there was no privity of contract between her and the respondents, and that Kshs. 9,712,000/- already held in a court deposit account could suffice as security. The respondents opposed, contending the notice of appeal was filed out of time under Rule 77 of the Court of Appeal Rules 2022, that the appeal was incompetent, that no substantial loss was demonstrated, and that the application was an abuse of process aimed at stalling execution. They urged that any security take the form of deposit of the full decretal sum. The court framed a single issue: whether the applicant was entitled to stay of execution pending appeal. Applying the settled conditions - sufficient cause, substantial loss, no unreasonable delay, and security - the court found the notice of appeal, required by 14th November 2023, was lodged on 17th November 2023, and that the applicant conceded no leave for extension had been sought. Holding that stay cannot issue in respect of an appeal lodged out of time without leave, the court dismissed the motion with each party bearing its own costs.

Key legal issues

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Whether stay of execution pending appeal is merited where the notice of appeal was filed out of time

Holding

The application fails because the notice of appeal was lodged three days out of time without any application for leave, so the intended appeal is incompetent and stay cannot be granted

Reasoning

Rule 77(2) of the Court of Appeal Rules 2022 requires a notice of appeal to be lodged within fourteen days of the decision. Judgment was delivered on 31st October 2023, so the notice was due by 14th November 2023, but was lodged on 17th November 2023. The applicant conceded she had not sought leave to file out of time. The court held it could not consider stay on an incompetent appeal.

p. 5

Legal principles established

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  • A notice of appeal must be filed within the prescribed period and a court cannot grant stay of execution pending an appeal lodged out of time where no leave has been sought
  • Stay of execution requires sufficient cause, substantial loss, no unreasonable delay, and security

Court orders

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  1. 1.The notice of motion dated 28th December, 2023 is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), (2), (3)
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Court of Appeal Rules, 2022Rule 77(1) and (2)

Cases cited (10)

  • James Wangalwa & Another versus Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW versus EKW
    [2019] eKLR
  • Jayesh Hasmukh Shah versus Narir Haira & Another
    [2015] eKLR
  • Emily Jeptoo versus Hellen Jeruto & 3 Others
    Civil Appeal No. 99 of 2012
  • John Mugambi & Another versus Dr. Kiama Wangai
    Civil Appeal No. 597 of 2012
  • Muhu Holdings Limited & 2 Others versus Achina Nangomo & 2 Others
    [2019] eKLR
  • Masisi Mwita versus Damaris Wanjiku Njeri
    [2016] eKLR
  • Vishram Rouji Halal versus Thornton & Turpur
    Civil Appeal No. 15 of [1990] KLR 365
  • Hassan Guyo Wakolo versus Straman E.A. Ltd.
    [2013]
  • Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
Jurisdiction invoked
Order 42 Rule 6(1), (2), (3) and Order 50 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musa (Suing as the next friend of Khatija Issak Musa) v Musa & 6 others (Environment & Land Case 6 of 2020) [2024] KEELC 3900 (KLR)", Case Analysis (2024). ELC Case No. 6 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3900/eng@2024-04-30

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