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ELCDismissedNot stated on the face of the judgment (arising from Mombasa CMCC ELC No. 68 of 2020)· [2024] KEELC 5045 (KLR)

Elick & another v Otsyula & 2 others (Environment & Land Miscellaneous Case E001 of 2024) [2024] KEELC 5045 (KLR)

Environment and Land Court
3 July 2024
1,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to extend time to appeal because the applicants filed no appeal or draft memorandum, and refused a stay for the same reason.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Mombasa by notice of motion dated 22nd January 2024 seeking leave to appeal out of time against the judgment of Hon. D.O Mbeja delivered on 16th November 2023 in Mombasa CMCC ELC No. 68 of 2020, together with a stay of execution of that judgment and decree. The 1st applicant deponed that the trial court failed to deliver judgment on the scheduled date of 19th October 2023, that no judgment notice issued for 16th November 2023, and that he only learnt of the judgment on 12th January 2024 when the 1st respondent demanded he keep off Plot No. 505, Miritini. The 1st respondent opposed via grounds of opposition, arguing the application was defective and did not meet the test for stay. The court framed three issues: leave to appeal out of time, stay of execution, and costs. Applying section 79G of the Civil Procedure Act and the reasoning in Gerald M'limbine v Joseph Kangangi and Mugo v Wanjiru, the court held that an intending appellant must file an appeal, or at least annex a draft memorandum of appeal, when seeking extension of time. Finding no appeal on record and no draft memorandum annexed, the court declined leave and, likewise, refused stay under Order 42 Rule 6, which cannot issue absent an existing appeal. On costs, section 27 dictated that costs follow the event. The notice of motion was dismissed with costs to the 1st respondent.

Key legal issues

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01

Leave to appeal out of time under section 79G

Holding

Refused; the applicant neither filed an appeal nor annexed a draft memorandum of appeal

Reasoning

Section 79G requires an appeal within 30 days, extendable on good and sufficient cause. Following Gerald M'limbine v Joseph Kangangi and Mugo v Wanjiru, the application for extension must be accompanied by an appeal or draft memorandum so the court can assess its merits. Here none was filed or annexed, so the strength of the intended grounds could not be determined and leave could not issue.

p. 3
02

Stay of execution pending appeal under Order 42 Rule 6

Holding

Refused; there is no existing appeal

Reasoning

Order 42 Rule 6 relief presupposes an appeal. Since no appeal had been filed and no draft memorandum annexed, the prerequisite for a stay pending appeal was absent and the prayer failed together with the leave prayer.

p. 3
03

Costs

Holding

Costs awarded to the 1st respondent

Reasoning

Under section 27 of the Civil Procedure Act costs follow the event unless good reasons exist for departing from that rule. The court saw no reasonable grounds to depart, so the unsuccessful applicants were ordered to pay the 1st respondent's costs.

p. 3

Legal principles established

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  • An applicant seeking to appeal out of time must file the appeal (or a draft memorandum of appeal) together with the application for leave; leave cannot be sought in respect of a non-existent appeal
  • Stay of execution pending appeal under Order 42 Rule 6 cannot be granted where no appeal exists

Court orders

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  1. 1.The notice of motion dated 22nd January 2024 is without merit and is dismissed
  2. 2.The applicant to pay the cost of the 1st respondent
On appeal from
Chief Magistrate's Court, Mombasa
CMCC ELC No. 68 of 2020
Jurisdiction invoked
Section 79G of the Civil Procedure Act (Chapter 21, Laws of Kenya); 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, "Elick & another v Otsyula & 2 others (Environment & Land Miscellaneous Case E001 of 2024) [2024] KEELC 5045 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (arising from Mombasa CMCC ELC No. 68 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5045/eng@2024-07-03

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