Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissednot stated in judgment (arising from Nyeri CMCL & E Case No. 92 of 2018)· [2024] KEELC 5354 (KLR)

Abdalla & 2 others v Zakaria & 3 others (Environment and Land Appeal E003 of 2022) [2024] KEELC 5354 (KLR)

Environment and Land Court
19 July 2024
JOJ. O. OLOLA
914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to extend time for depositing Kshs. 300,000 because the applicants explained neither their non-compliance nor their 59-day delay.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 31st May 2023, Hussein Ali Abdalla alias Billy, Halima Wanjiru Zakaria and Rukia Njoki Hamisi (Appellants) sought an extension of time to comply with a condition attached to an order of stay of execution granted on 16th February 2023, namely deposit of Kshs. 300,000/= in a joint interest-earning account in the names of the parties' advocates within 45 days. The Appellants deponed, through the 3rd Appellant, that impecunious circumstances prevented them from raising the amount, and sought 45 further days. The 1st Respondent, Susan Wanjiru Zachariah, opposed the application, pointing out that the compliance period lapsed on 2nd April 2023, that the application was filed some 59 days late without sufficient explanation, and that this was the third time the Appellants sought a stay of execution. Justice J. O. Olola considered Order 50 Rule 6 of the Civil Procedure Rules, 2010, which permits enlargement of time even after expiry, and applied the principle from Dilpack Kenya Limited v William Muthama Kitonyi that a party seeking indulgence after non-compliance must explain the delay. The court noted that only the 77-year-old 3rd Appellant explained her circumstances, with no explanation offered for the other two Appellants or for the 59-day delay. Citing the ex-parte David Mugo Mwangi decision on the duty to comply with court orders, the court held the Appellants undeserving of the discretion and dismissed the motion with costs to the 1st Respondent on 19th July 2024.

Key legal issues

#
01

Whether the discretion under Order 50 Rule 6 should be exercised to extend time for depositing the ordered security

Holding

Discretion refused: the Applicants gave no explanation for non-compliance and filed the application 59 days late

Reasoning

The court found that only the 3rd Appellant (aged 77, dependent on relatives) explained her predicament; no explanation was given for the 1st and 2nd Appellants' failure to raise the funds, nor for the 59-day delay in moving the court. Citing Dilpack and the ex-parte Mugo Mwangi decision, the court held that unexplained non-compliance disentitles a party to indulgence, and that the Appellants' conduct showed little regard for court orders.

p. 3

Legal principles established

#
  • Where a limited time has been fixed for doing any act under the rules, the court may enlarge such time even after expiration, on such terms as the justice of the case requires
  • The burden lies on the party seeking indulgence after non-compliance to explain the delay; where there is no explanation, there is no indulgence
  • Court orders are meant to be complied with; a party facing difficulty complying should return to court and explain the difficulties

Court orders

#
  1. 1.The Motion dated 31st May 2023 is dismissed with costs to the 1st Respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 50 Rule 6

Cases cited (2)

  • Dilpack Kenya Limited –vs- William Muthama Kitonyi
    [2018] eKLR
  • Republic –vs- County Chief Officer, Finance & Economic Planning, Nairobi City County Ex-parte David Mugo Mwangi
    [2018] eKLR
On appeal from
Chief Magistrate's Court, Nyeri
Nyeri CMCL & E Case No. 92 of 2018
Jurisdiction invoked
Order 50 Rule 6 of the Civil Procedure Rules, 2010 (enlargement of time); appeal from the magistrates' court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdalla & 2 others v Zakaria & 3 others (Environment and Land Appeal E003 of 2022) [2024] KEELC 5354 (KLR)", Case Analysis (2024). not stated in judgment (arising from Nyeri CMCL & E Case No. 92 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5354/eng@2024-07-19

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