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ELCStruck Out· [2024] KEELC 5479 (KLR)

Mbuthi v Muthui & another (Enviromental and Land Originating Summons 15 of 2021) [2024] KEELC 5479 (KLR)

Environment and Land Court
22 July 2024
LKL. G. Kimani
2,937 words in judgment
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The bottom line

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A Kenyan landowner lost his bid to block enforcement of a land judgment because he never actually filed his appeal within 60 days.

What this practically means

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Executive summary

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The 2nd defendant moved the court by Notice of Motion dated 28th November 2023 seeking a stay of execution of the judgment of 21st September 2023, by which a 1.5-acre portion of land parcel Matinyani/Mutulu/716 was to be transferred to the plaintiff. He filed a Notice of Appeal on 5th October 2023 and contended that execution would render his intended appeal nugatory and cause him substantial loss. The plaintiff raised a preliminary objection that no appeal had been lodged within 60 days as required by Rule 84(1) of the Court of Appeal Rules, so the court lacked jurisdiction to entertain the stay application, and noted the absence of security and a draft memorandum. The applicant replied that his extension-of-time application was pending and that a Notice of Appeal remains active until struck out. The court applied the Mukisa Biscuit test and found the objection raised pure points of law. It held that under Order 42 Rule 6(4) an appeal is deemed filed only when a notice of appeal is duly given under the Court of Appeal Rules; the 60-day period expired on 4th December 2023, and the proviso did not assist because the letter seeking certified proceedings was lodged outside 30 days, not copied to and not proved served on the respondent, contrary to Rule 84(2). The applicant was therefore deemed to have withdrawn his Notice of Appeal under Rule 85(1), no order of the Court of Appeal being necessary. With no appeal in existence, the stay application was incompetent. The preliminary objection was upheld, the application was struck out, and costs were awarded to the respondent.

Key legal issues

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01

Nature of a preliminary objection

Holding

The preliminary objection raised pure points of law ascertainable from the record and was properly before the court

Reasoning

Applying the Mukisa Biscuit formulations, the court found the objection required no ascertainment of facts beyond examining the record, since the question was whether the appeal had been instituted within the 60 days prescribed by Rule 84(1) of the Court of Appeal Rules.

p. 5
02

Whether an appeal existed for purposes of the stay application

Holding

No appeal existed: the proviso to Rule 84(1) did not apply because the letter requesting proceedings was filed out of time and not served, so the appeal was not lodged within 60 days

Reasoning

The Notice of Appeal filed 5th October 2023 was timely under Rule 77(2), but the 60-day period expired on 4th December 2023. The applicant's letter seeking certified proceedings was received 29th January 2024, beyond 30 days, not copied to the respondent's advocates and unproved as served, contravening Rule 84(2). The extension application itself admitted non-compliance.

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Effect of Rule 85(1) on the Notice of Appeal

Holding

The Notice of Appeal was automatically deemed withdrawn, depriving the court of jurisdiction to grant a stay

Reasoning

Rule 85(1) deems a notice of appeal withdrawn where the appeal is not instituted within the appointed time. The court held the Court of Appeal's making of an order to that effect is not mandatory; the deemed withdrawal is automatic. With no appeal in existence, the stay application under Order 42 Rule 6 was improperly before the court.

p. 6

Legal principles established

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  • A notice of appeal that is not followed by institution of the appeal within 60 days under Rule 84(1) of the Court of Appeal Rules is automatically deemed withdrawn under Rule 85(1); no order of the Court of Appeal is required
  • A court may only entertain an application for stay of execution pending appeal under Order 42 Rule 6 where an appeal is deemed filed by a notice of appeal validly given under the Court of Appeal Rules

Court orders

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  1. 1.The preliminary objection dated 11th January 2024 is upheld
  2. 2.The application dated 28th November 2023 is struck out
  3. 3.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22(1)
  • Civil Procedure RulesOrder 42 Rule 6(1), (2), (3), (4), (5), (6)
  • Court of Appeal Rules, 2010Rule 4
  • Court of Appeal Rules, 2010Rule 77(2)
  • Court of Appeal Rules, 2010Rule 84(1) and (2)
  • Court of Appeal Rules, 2010Rule 85(1)
  • Court of Appeal Rules, 2010Rule 118

Cases cited (7)

  • Sundiata Nathan Mutende v. Willy Mwololo Muindi (2020) eKLR
    (2020) eKLR
  • Amal Hauliers Limited v. Abdulnasir Abubakar Hassan (2017) eKLR
    (2017) eKLR
  • MFI Document Solutions Ltd v. Paretto Printing Works Limited (2021) eKLR
    (2021) eKLR
  • Butt v. Rent Restriction Tribunal
    (1982) KLR 417
  • HGE v SM
    [2020] eKLR
  • Antoine Ndiaye v. African Virtual University
    [2015] eKLR
  • Mukisa Biscuit Manufacturer Ltd v Westend Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Order 22 Rule 22 and Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

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, "Mbuthi v Muthui & another (Enviromental and Land Originating Summons 15 of 2021) [2024] KEELC 5479 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5479/eng@2024-07-22

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