Kimani & another v County Government of Kiambu & 3 others (Environment & Land Case 108 of 2022) [2024] KEELC 5743 (KLR)
The bottom line
#A Kenyan land court gave traders a second chance to appeal after 2½ years, but refused to stop their eviction, warning the appeal dies if not filed within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants are entitled to leave to appeal out of time
- 2.Whether the Applicants have met the threshold for grant of temporary injunction pending appeal
- 3.Who bears costs
Key legal issues
#Leave to appeal out of time under proviso to Section 79G CPA
Leave granted despite lack of cogent explanation for delay, in exercise of inherent powers and in the interest of justice under Articles 48 and 159
The court found the applicants had not given a cogent explanation for the delay of over 2½ years, only blaming their erstwhile advocates without evidence. However, noting prior appeals were dismissed on technicalities (want of prosecution and want of leave), the court invoked its inherent powers and Articles 48 and 159 to grant leave so the applicants have their day in court.
Temporary injunction pending appeal
Refused for failure to establish prima facie case or irreparable harm
Applying Order 40 rule 1 CPR, Giella v Cassman Brown and Patricia Njeri principles, the applicants failed to table evidence of their occupation of the suit land or demonstrate irreparable harm not compensable in damages; if the appeal succeeded, the land could revert to them. An injunction is never a matter of right but of sound judicial discretion.
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the Court's discretion, assessed on factors including reason for delay, prejudice and undue delay
- Injunctions pending appeal are discretionary and will be refused against a frivolous appeal or where the appeal would not be rendered nugatory
Court orders
#- 1.Applicants granted leave to appeal out of time
- 2.Appellant to file and serve the Record of Appeal within 30 days
- 3.Failure to comply, the appeal shall stand automatically dismissed with costs to the Respondents
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act; Articles 48 and 159 of the Constitution of Kenya
Relief refused
#Prayer for temporary injunction pending appeal
Applicants did not table evidence of occupation nor demonstrate irreparable harm not compensable by damages
Costs
Each party to bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application dated 23/11/2022 (seeking leave to appeal out of time) is allowed on condition that; a. The Appellant to file and serve the Record of Appeal within 30 days from today.
Failure to comply with (a) above, the appeal shall stand automatically dismissed with costs to the Respondents.
Each party to bear their own costs.
The Applicants have not tabled any evidence in support of their occupation of the suit land.
Issues in the judgment
#Case number not stated in the judgment; the underlying trial suit is referred to inconsistently as '137 of 2020 formerly ELC No 687 of 2017 (sic)'
Only the 3rd and 4th Respondents are active; the 1st and 2nd Respondents are absent and their identity is not given
Recurrent typographical errors ('sufier', 'afidavit') in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & another v County Government of Kiambu & 3 others (Environment & Land Case 108 of 2022) [2024] KEELC 5743 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5743/eng@2024-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.