Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. E156 of 2020 - Notice of Motion dated 12th February 2024· [2024] KEELC 4701 (KLR)

Inonda & 4 others v County Government of Nairobi; Registrar of Lands Sued Through the Attorney General & 2 others (Interested Parties) (Environment & Land Case E156 of 2020) [2024] KEELC 4701 (KLR)

Environment and Land Court
13 June 2024
4,948 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 Environment and Land Court refused Nairobi County's late attempt to appeal a 2022 judgment, ruling you cannot agree to comply with a judgment and then try to appeal it.

What this practically means

#

Executive summary

#
The County Government of Nairobi (Defendant/Applicant) moved the Environment and Land Court by Notice of Motion dated 12th February 2024, pursuant to Section 7 of the Appellate Jurisdiction Act, seeking stay of execution of the judgment delivered by Oguttu Mboya J on 23rd September 2022 in ELC Case No. E156 of 2020 and leave to file a Notice of Appeal out of time. The Plaintiffs/Respondents opposed, citing inordinate and unexplained delay and consent orders made on 8th May 2023 in contempt proceedings by which the Applicant agreed to comply with the judgment. The court framed three issues: delay and its explanation; whether extension of time could issue in the face of the consent orders; and whether stay of execution was merited under Order 42 Rule 6. On the first, the court found the over-18-month delay extremely inordinate and unexplained: no written instructions to erstwhile counsel were exhibited, and the 2022 election/transition explanation was a scapegoat since the judgment post-dated the elections and the Applicant is a body corporate unaffected by change of administration. On the second, the court held that by the consent orders the Applicant conceded, acknowledged and admitted the judgment, and seeking to appeal it amounts to approbation and reprobation, rendering the intended appeal mala fides. On the third, stay pending intended appeal cannot issue absent a filed Notice of Appeal. The application was dismissed with costs to the Plaintiffs/Respondents on 13th June 2024.

Key legal issues

#
01

Inordinate and unexplained delay in applying for extension of time

Holding

The 18-month delay was unreasonable and inordinate and no sufficient cause was tendered; the explanations (counsel's inaction, 2022 elections, transition and internal audit) failed

Reasoning

The judgment was delivered on 23rd September 2022 but the application was filed on 12th February 2024, over 18 months later. No written instructions to erstwhile counsel were exhibited, so counsel's blame could not be authenticated. The election explanation was a scapegoat since the judgment post-dated the 7th August 2022 elections. A body corporate with perpetual succession is unaffected by change of administration. Without sufficient cause, equitable discretion cannot be exercised in the Applicant's favour.

p. 6
02

Effect of consent orders of 8th May 2023 on extension of time to appeal

Holding

Having entered a consent confirming readiness to comply with the judgment during contempt proceedings, the Applicant conceded and acknowledged the judgment and cannot now seek leave to appeal against it; such conduct is approbation and reprobation

Reasoning

The consent order recorded the 1st and 4th Defendants/Respondents and contemnors as agreeing to comply with the judgment of 23rd September 2022 without default. That consent was never set aside or varied. The Applicant therefore cannot blow hot and cold by seeking to appeal a judgment it conceded, acknowledged and admitted; the intended appeal is mala fides and legally untenable.

p. 9
03

Stay of execution pending intended appeal absent a Notice of Appeal

Holding

Stay of execution under Order 42 Rule 6 cannot issue in the absence of a filed appeal or Notice of Appeal; the prayer is premature, misconceived and legally untenable

Reasoning

Order 42 Rule 6(4) contemplates that a Notice of Appeal is deemed to constitute an appeal and is the foundation for stay. Here no Notice of Appeal has been filed; indeed the Applicant simultaneously seeks leave to file one out of time. The request for stay is thus mounted in vacuum and would fail even if the delay issue had been resolved in the Applicant's favour.

p. 10

Legal principles established

#
  • Extension of time requires sufficient cause comprising plausible and believable reasons which leave no doubt in the mind of a reasonable person
  • A litigant cannot merely blame erstwhile counsel without demonstrating own diligence in following up the case
  • A party who has consented to and acknowledged a judgment cannot seek leave to appeal against it - approbation and reprobation is unacceptable conduct
  • Stay of execution pending intended appeal can only issue where a Notice of Appeal has been filed

Court orders

#
  1. 1.The application dated the 12th February 2024 be and is hereby dismissed with costs to the Plaintiffs/Respondents

Authorities

#

Legislation

  • Appellate Jurisdiction Act, Chapter 9 Laws of KenyaSection 7
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 95
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A and 1B
  • Civil Procedure Rules, 2010Order 42 Rules 6(1), 6(2) and 6(4)
  • Constitution of Kenya, 2010
  • County Government Act, 2012

Cases cited (17)

  • Philip Keipto Chemwolo & Another v Augustine Kubende & Another
    [1986]eKLR
  • Edward Njane Ng'ang'a & Another v Damaris Wanjiku Kamau & Another
    [2016]eKLR
  • Moroo Polymers Ltd v Wilfred Kasyoki Willis
    [2019]eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2014]eKLR
  • Butt v Rent Restriction Tribunal
    [1979]eKLR
  • Margaret Wangithi Njuki v Bernard Waweru Kiburi & 2 Others
    [2020]eKLR
  • Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet
    [2018]eKLR
  • Aviation Cargo Support Ltd v St. Mark Freight Services Ltd
    [2014]eKLR
  • Hammed Chege Gikera v John Maina Mburu & 2 Others
    [2021]eKLR
  • Habo Agencies versus Wilfred Odhiambo Misingo
    [2015]eKLR
  • Tana and Athi Rivers Development Authority versus Jeremiah Kimigho Mwakio & 3 others
    [2015]eKLR
  • Mwangi v Kariuki
    [1999] LLR 2632 (CAK)
  • Attorney General vs The Law Society of Kenya & Another, Court of Appeal Civil Appeal No. 133 of 2011
    [2013]eKLR
  • Njoroge v Kimani (Civil Application Nai E049 of 2022)
    [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
  • Republic versus Institute of Certified Public Secretaries of Kenya Ex-parte Mundia Njeru Geteru
    (2010)eKLR
  • Evans vs Bartlam
    (1973) 2 ALL ER 649
  • Banque De Moscou vs Kendersley
    (1950) ALL ER 549
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Chapter 9 Laws of Kenya; Section 95 of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Inonda & 4 others v County Government of Nairobi; Registrar of Lands Sued Through the Attorney General & 2 others (Interested Parties) (Environment & Land Case E156 of 2020) [2024] KEELC 4701 (KLR)", Case Analysis (2024). ELC Case No. E156 of 2020 - Notice of Motion dated 12th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4701/eng@2024-06-13

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