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ELCPartially AllowedNot stated in the judgment text

Kimani & another v County Government of Kiambu & 3 others (Environment & Land Case 108 of 2022) [2024] KEELC 5743 (KLR)

Environment and Land Court
30 July 2024
2,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By Notice of Motion dated 23/11/2022, the intended Appellants — members of Githurai Muiganania Open Market Group trading on Plot No B3 Githurai market (Ruiru Kiu Block 6 Gatharaini/211) — sought leave to appeal out of time against a judgment delivered on 20/1/2022 in Ruiru ELC No 687 of 2017, and a temporary injunction restraining the 3rd and 4th Respondents from evicting them pending appeal. The application was opposed; the Respondents maintained that the applicants were illegal encroachers on private property and that two earlier appeals (Thika E013 of 2022 and Thika E046 of 2022) had been dismissed. The court framed three issues: entitlement to leave to appeal out of time, the threshold for an injunction pending appeal, and costs. Applying Section 79G and Section 95 of the Civil Procedure Act and the Salat and Nyamboki principles, Justice G K Kemei found no cogent explanation for the delay of over 2½ years, the applicants having merely blamed their erstwhile advocates without evidence. Nevertheless, invoking the court's inherent powers and Articles 48 and 159 of the Constitution, and noting the prior appeals were dismissed on technicalities, leave to appeal out of time was granted conditionally: the Record of Appeal to be filed and served within 30 days, failing which the appeal stands automatically dismissed with costs to the Respondents. Applying Order 40 rule 1, Giella v Cassman Brown and Patricia Njeri principles, the injunction prayer was refused for want of evidence of occupation and irreparable harm. Each party was ordered to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants are entitled to leave to appeal out of time
  2. 2.Whether the Applicants have met the threshold for grant of temporary injunction pending appeal
  3. 3.Who bears costs

Key legal issues

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01

Leave to appeal out of time under proviso to Section 79G CPA

Holding

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

Reasoning

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.

p. 4
02

Temporary injunction pending appeal

Holding

Refused for failure to establish prima facie case or irreparable harm

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Applicants granted leave to appeal out of time
  2. 2.Appellant to file and serve the Record of Appeal within 30 days
  3. 3.Failure to comply, the appeal shall stand automatically dismissed with costs to the Respondents
  4. 4.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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Prayer for temporary injunction pending appeal

Applicants did not table evidence of occupation nor demonstrate irreparable harm not compensable by damages

p. 5

Costs

Each party to bear their own costs.

Quotable passages

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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.
p. 5Final orders - leave granted conditionally
Failure to comply with (a) above, the appeal shall stand automatically dismissed with costs to the Respondents.
p. 5Final orders - automatic dismissal for non-compliance
Each party to bear their own costs.
p. 5Final orders - costs
The Applicants have not tabled any evidence in support of their occupation of the suit land.
p. 5Failure to establish prima facie case

Issues in the judgment

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minor

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)'

minor

Only the 3rd and 4th Respondents are active; the 1st and 2nd Respondents are absent and their identity is not given

minor

Recurrent typographical errors ('sufier', 'afidavit') in the judgment text

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, "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.