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ELCPartially AllowedELC MISC. APPL. E003.2024· [2024] KEELC 4372 (KLR)

Njuguna v Wanyoike (Environment and Land Miscellaneous Application E003 of 2024) [2024] KEELC 4372 (KLR)

Environment and Land Court
28 May 2024
4,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer got extra time to appeal over his illness, but the court refused to shield the land until a proper appeal is actually filed.

What this practically means

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Executive summary

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This was an application under Sections 1A, 1B, 3A, 63(e) and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules in which the Applicant, John Nganga Njuguna, sought leave to appeal out of time against a ruling of the Ruiru Principal Magistrates' Court in MC ELC/E.119/2023 delivered on 2 November 2023, which had granted a temporary injunction against him over land known as LR No. 13673/195 Title No. 59788; a stay of the trial proceedings; and a temporary injunction pending appeal. The Respondent, Harun Mburu Wanyoike, the registered owner of the suit land since 2000, opposed, contending the Applicant was a trespasser in occupation by consent, that no justification existed for the delay, and that the application was aimed at delaying the suit. The Applicant explained the delay of about two and a half months by illness, supported by sick sheets and hospital appointment records. The court found the delay not inordinate and granted leave to appeal out of time, allowing the Applicant 7 days to file the memorandum of appeal, 21 days for the record of appeal, and directing that the appeal be listed for hearing within 45 days, with default leading to dismissal of the application. Relying on Section 6 of the Civil Procedure Act and the Ramogi and Global Tours jurisprudence, the court also stayed the trial proceedings to avoid parallel proceedings and outcomes. However, it refused the temporary injunction pending appeal, holding that under Order 42 rule 6(6) the threshold of compliance with the appeal-institution procedure was not met, no memorandum of appeal had been filed to demonstrate a prima facie case, and the trial court's injunction was already in place. Costs were to be in the cause.

Key legal issues

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01

Whether leave to appeal out of time should be granted

Holding

Leave is granted; the delay of about two and a half months is not inordinate given the Applicant's illness, though he failed to heed counsel's advice on the right to appeal

Reasoning

The court applied Section 79G proviso and Section 95 of the Civil Procedure Act and the Salat and Nyamboki principles on extension of time. The sick sheet and hospital appointment records corroborated the Applicant's plea of illness; checkups ran from February to December 2023. Though the Applicant was advised by counsel and chose not to heed the advice, the court found the roughly two-and-a-half-month delay not inordinate and exercised its discretion to extend time.

p. 5
02

Whether the trial court proceedings should be stayed pending appeal

Holding

Stay of proceedings is granted to avoid parallel proceedings and outcomes between the trial court and the High Court, in light of Section 6 of the Civil Procedure Act

Reasoning

The court applied the Global Tours, Ramogi and Kenya Wildlife Service jurisprudence that stay of proceedings is a discretionary, grave power exercised sparingly. Balancing the Applicant's right of appeal against the Respondent's right to expeditious determination under Article 50(1), and noting the trial court is functus officio on the injunction, the court found it proper to stay proceedings to protect the sanctity of court proceedings and avoid parallel outcomes.

p. 8
03

Whether a temporary injunction pending appeal should issue

Holding

Temporary injunction pending appeal is refused because the threshold in Order 42 rule 6(6) - compliance with the appeal-institution procedure - is not met, no memorandum of appeal was filed, and the trial injunction is already in place

Reasoning

The court held that Order 42 rule 6(6) permits an injunction pending appeal only where the procedure for instituting the appeal has been complied with; as no appeal had been filed (leave having only now been granted), the threshold was unsatisfied. Applying Patricia Njeri and Giella principles, the court found no prima facie case demonstrated absent a memorandum of appeal, no proof damages would be inadequate given the existing trial injunction, and no balance of convenience favouring the Applicant.

p. 9

Legal principles established

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  • An appeal may be admitted out of time where the appellant satisfies the court that he had good and sufficient cause for not filing in time, the exercise being discretionary
  • Stay of proceedings pending appeal is a discretionary judicial power to be exercised judiciously and sparingly, in the interests of justice
  • The High Court's power to grant a temporary injunction pending appeal under Order 42 rule 6(6) is conditional on compliance with the procedure for instituting an appeal from a subordinate court

Court orders

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  1. 1.The Application is allowed in terms of Prayers b and c only
  2. 2.Leave is granted to the Applicant to file and serve his Memorandum of Appeal within 7 days from today's date
  3. 3.Upon filing the appeal, the Applicant to file and serve his Record of Appeal within 21 days of today's date
  4. 4.The Appeal be listed for hearing within 45 days of today's date
  5. 5.Failure to comply with either of orders b, c and d above the Application shall stand dismissed and the orders herein deemed vacated
  6. 6.Costs be in the cause
On appeal from
Ruiru Principal Magistrates Court
MC ELC/E.119/2023
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act and Order 42 Rule 6, Order 50 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Njuguna v Wanyoike (Environment and Land Miscellaneous Application E003 of 2024) [2024] KEELC 4372 (KLR)", Case Analysis (2024). ELC MISC. APPL. E003.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4372/eng@2024-05-28

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