Elick & another v Otsyula & 2 others (Environment & Land Miscellaneous Case E001 of 2024) [2024] KEELC 5045 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Leave to appeal out of time under section 79G
Refused; the applicant neither filed an appeal nor annexed a draft memorandum of appeal
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.
Stay of execution pending appeal under Order 42 Rule 6
Refused; there is no existing appeal
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.
Costs
Costs awarded to the 1st respondent
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 22nd January 2024 is without merit and is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.