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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in extract (Thika ELC, Notice of Motion dated 17/1/2024)· [2024] KEELC 5005 (KLR)

John Wambugu & Another v Samuel Mwaniki Waithaka & Others

Environment and Land Court
27 June 2024
2,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Thika court gave landowners a second chance to appeal a planning decision out of time, but refused to pause its enforcement because they showed no real loss.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court at Thika by Notice of Motion dated 17/1/2024 under Sections 79G and 95 of the Civil Procedure Act, Order 42 Rule 6(1) CPR, the ELC Act and Section 61(4) PLUPA, seeking leave to appeal out of time against the determination of the County Physical and Land Use Planning Liaison Committee in Appeal No. CGK/KCLC/010 of 2023 delivered on 26/6/2023, deeming of their memorandum of appeal, and stay of execution of that determination pending appeal. The Liaison Committee had found the Applicants had built contrary to approved plans, directed issuance of an Enforcement Notice, and declared and ordered cancellation of their occupation certificate. The Respondents and Interested Parties opposed, citing indolence, failure to use the statutory appeal route under Section 72(4) PLUPA, and failure to demonstrate substantial loss. The applicants explained the delay by their Judicial Review proceedings (Thika JR E002 of 2023, dismissed 13/12/2023, Eboso J) in which they were directed to pursue an appeal. Applying Section 79G and the Salat principles, and citing fair hearing rights under Article 50, Kemei J granted leave to appeal out of time but refused stay of execution, holding that substantial loss was not demonstrated and no security was offered. The application succeeded in terms of the leave prayer only, with filing of the memorandum and record of appeal ordered within 15 days and costs in the cause.

Key legal issues

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01

Leave to appeal out of time

Holding

Granted in the interests of justice; the delay of about seven months was partly explained by the pursuit of Judicial Review proceedings which the court had dismissed with a direction to pursue an appeal

Reasoning

The court applied Section 79G of the Civil Procedure Act and the Salat principles, noting the applicants had first channelled their grievances through Judicial Review dismissed on 13/12/2023. Guided by the Supreme Court's fair hearing jurisprudence and purely in the interests of justice, the discretion to enlarge time was exercised in the applicants' favour despite the objection of indolence.

p. 5
02

Stay of execution pending appeal

Holding

Refused; the applicants failed to establish the conditions in Order 42 rule 6(2), particularly substantial loss and security

Reasoning

The court restated the three conditions: substantial loss, timely application and security. The applicants only asserted the appeal was arguable and that it would be rendered otiose, which does not amount to substantial loss. No security was offered. The impugned orders concerned enforcement of approved plans, and the applicants did not demonstrate the loss they would suffer.

p. 6

Legal principles established

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  • Extension of time is a discretionary equitable remedy; the applicant bears the burden of explaining the delay and showing no prejudice to the respondent, guided by the Salat principles
  • Substantial loss is the cornerstone of an application for stay of execution under Order 42 rule 6

Court orders

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  1. 1.Leave granted to the Appellants to appeal out of time against the determination of the County Physical and Land Use Planning Liaison Committee in Appeal No. CGK/KCLC/010 of 2023
  2. 2.Applicants to file and serve their Memorandum of Appeal and Record of Appeal within 15 days
  3. 3.Costs be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2), Order 51
  • Environment and Land Court ActSections 13(1) & (4), 16A
  • Physical and Land Use Planning Act 2019Sections 61(3), 61(4), 72(4)
  • Constitution of KenyaArticles 50(1) & (2), 159(2)(d)

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Kamlesh Mansukhalal Damki Patni Vs. Director of Public Prosecution & 3 others
    [2015] eKLR
  • Njoroge Vs. Kimani
    [2022] KECA 1188 (KLR)
  • Butt Vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Hussein Khalid and 16 Others Vs. Attorney General & 2 Others
    [2019] eKLR
On appeal from
County Physical and Land Use Planning Liaison Committee
CGK/KCLC/010 of 2023
Jurisdiction invoked
Sections 3, 3A & 79G Civil Procedure Act; Order 42 Rule 6(1) & Order 51 CPR; Sections 13(1) & (4) Environment and Land Court Act; Section 61(4) Physical and Land Use Planning Act 2019; Article 159(2)(d) Constitution

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, "John Wambugu & Another v Samuel Mwaniki Waithaka & Others", Case Analysis (2024). Not stated in extract (Thika ELC, Notice of Motion dated 17/1/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5005/eng@2024-06-27

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