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ELCAllowedELC Misc. Application No. 7 of 2024 (MLD)· [2024] KEELC 4434 (KLR)

Mkungu & another v Gonzi & another (Environment & Land Case 7 of 2024) [2024] KEELC 4434 (KLR)

Environment and Land Court
4 June 2024
MNMwangi Njoroge
1,460 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a late land appeal, ruling a four-day delay was reasonable once the Christmas holidays were excluded from the deadline.

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 Malindi (Mwangi Njoroge, J) on a notice of motion dated 5/2/2024 by the Plaintiffs, seeking leave to file an appeal out of time against the judgment and decree of Hon. E.K Usui, CM in CMCC Land Case No. 49 of 2020, delivered 11/12/2023, and a stay of execution of that decree. The Plaintiffs explained they learned of the judgment only on 28/1/2024 when served with a vacant-possession letter, and that their advocates' offices were closed for the December holidays. The Respondents opposed, contending no sufficient reason for the delay was shown. The court framed two issues: whether leave to appeal out of time should issue, and whether execution should be stayed. Applying Section 79G of the Civil Procedure Act and Order 50 Rule 4 (which excludes 21st December to 13th January from computations of time), the court deducted 23 days from a 27-day delay, leaving a delay of only 4 days, which it held was not inordinate. Although noting a conflict between the office-closure claim and the advocates' receipt of the judgment letter on 19/12/2023, the court extended the benefit of doubt to the applicants. On stay, it found that demolition of the applicants' only home would cause substantial loss and render the appeal nugatory. The application was allowed subject to conditions: memorandum of appeal filed and served within 7 days, record of appeal within 30 days, failing which the leave and stay would stand automatically vacated.

Key legal issues

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01

Whether leave should be granted to appeal out of time under Section 79G of the Civil Procedure Act

Holding

Leave granted; after deducting the 23 days excluded under Order 50 Rule 4, the delay was only 4 days, which is not inordinate.

Reasoning

The court applied Section 79G requiring appeals within 30 days, and Order 50 Rule 4 excluding the festive period (21st December to 13th January). Though there was a conflict between the claim of office closure and the advocates' receipt of the judgment letter on 19/12/2023, the court gave the applicants the benefit of doubt given the festive season context. The residual delay of 4 days was insufficient to deny leave.

p. 3
02

Whether stay of execution of the decree should issue pending appeal

Holding

Stay granted because demolition of the applicants' only home before the appeal is heard would cause substantial loss and render the appeal nugatory, subject to compliance conditions.

Reasoning

The court identified substantial loss and the risk of the appeal being rendered nugatory as conditions for stay. The applicants deposed that the home slated for demolition was their only home, so demolition before the appeal would cause substantial loss and deprive them of shelter during the pendency of the appeal. To prevent the applicants from becoming complacent, the court attached strict timelines with automatic vacation of the orders in default.

p. 3

Legal principles established

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  • The period between 21st December and 13th January is excluded in computing time for filing documents under the Civil Procedure Rules.
  • A delay of only a few days after exclusion of the festive season period is not inordinate and should not bar an appeal.

Court orders

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  1. 1.Leave granted to the applicants to file their memorandum of appeal out of time, with the memorandum deemed duly filed upon payment of requisite court fees
  2. 2.Stay of execution of the decree issued on 12th December 2023 by Hon. E.K Usui, CM pending hearing and determination of the intended appeal
  3. 3.Applicants to file, pay for and serve their memorandum of appeal within seven (7) days of the order
  4. 4.Applicants to file and serve their record of appeal within thirty (30) days from the date of the order
  5. 5.In default of compliance with the conditions either singly or cumulatively, the orders of leave and stay shall stand automatically vacated and the respondents at liberty to execute the decree

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63E, 78G, 95, 79G
  • Civil Procedure RulesOrder 51 rule 1, Order 22 rule 22, Order 42 rule 6(1),(2),(3), Order 50 rule 4

Cases cited (1)

  • Gabriel Osimbo V Chrispinus Mandare
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63E, 78G and 95 of the Civil Procedure Act; Order 51 rule 1, Order 22 rule 22, Order 42 rule 6 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, "Mkungu & another v Gonzi & another (Environment & Land Case 7 of 2024) [2024] KEELC 4434 (KLR)", Case Analysis (2024). ELC Misc. Application No. 7 of 2024 (MLD). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4434/eng@2024-06-04

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