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ELCDismissedNotice of Motion Application dated 11th June 2024 (arising from Murang'a ELC No. 52 of 2020)· [2024] KEELC 5765 (KLR)

Ndung’u v Maina (Sued in her capacity as the legal representative of the Estate of the Late Maina Mukura) (Environment and Land Appeal E024 of 2024) [2024] KEELC 5765 (KLR)

Employment and Labour Relations Court
29 July 2024
4,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a man's late appeal and stay of eviction because he waited two years and had already been evicted from the land.

What this practically means

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Executive summary

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The Applicant, through his advocate Kinyanjui Kimani of Amadi & Associates, moved the Employment and Labour Relations Court at Murang'a by Notice of Motion dated 11th June 2024 under Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act. He sought leave to appeal out of time against the judgment and decree of Hon. S. Mwangi (Senior Principal Magistrate) delivered on 31st May 2022 in Murang'a ELC No. 52 of 2020, a stay of execution of that judgment and decree, and a stay of warrants of arrest issued against him. The Respondent opposed, contending the application was brought after an inordinate two-year delay, was bad faith, and was futile since a court bailiff had already evicted the Applicant from land parcel LOC.19/KIAWAMBOGO/681 pursuant to the decree. The court framed two issues: whether the orders sought were overtaken by events, and whether the Applicant was entitled to them. Relying on Selestica Limited v Gold Rock Development Ltd, Wang'ombe v Nyamu, Elijah Kimani Kimuyu and Evans Kidero, the court held the stay orders moot since the decree had been executed. It further found, from the Respondent's annexure ENM2, that the Applicant was represented by counsel in the trial proceedings and was not condemned unheard, and that he offered no sufficient explanation for the two-year delay. The application was dismissed entirely with costs to the Respondent and the file closed.

Key legal issues

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01

Whether the orders sought have been overtaken by events

Holding

The stay orders sought are moot because the Applicant was already evicted pursuant to the trial court's decree; only the warrants of arrest on costs remain outstanding

Reasoning

The court found, on the pleadings and submissions, that a court bailiff had evicted the Applicant pursuant to the trial court's decree. Relying on Selestica Limited v Gold Rock Development Ltd, Wang'ombe v Nyamu, Elijah Kimani Kimuyu and Evans Kidero, the court held that there is nothing left to stay since execution of the decree has taken place, and courts will not act in vain or pronounce on academic matters.

p. 8
02

Whether the Applicant is entitled to leave to appeal out of time and stay of execution

Holding

No; the two-year unexplained delay disentitles the Applicant and he was represented before the trial court so was not condemned unheard

Reasoning

The impugned judgment was delivered on 31st May 2022 and the application was filed on 11th June 2024. The court was satisfied from annexure ENM2 that the Applicant was represented by counsel in the trial proceedings, negating his claim of being condemned unheard. Applying the Salat principles and the Mombasa County Government v Kooba Kenya Ltd authority, the court found no sufficient explanation for the delay.

p. 8

Legal principles established

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  • A stay of execution cannot be granted where the decree has already been fully executed; such an application is overtaken by events and moot
  • An applicant for leave to appeal out of time must provide the court with sufficient reasons for the delay

Court orders

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  1. 1.The instant Application dated 11th June 2024 is dismissed entirely with costs to the Respondent
  2. 2.The file is closed with no further orders, leave to appeal out of time not having been granted

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Constitution of Kenyaright to be heard (as invoked by the Applicant)

Cases cited (16)

  • County Executive of Kisumu v County Government of Kisumu and 2 Others
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Vishram Ravji Halai v Thornton & Turpin
    Nairobi Civil Application No. 15 of 1990 [1990] KLR 365
  • Selestica Limited v Gold Rock Development Ltd
    [2015]
  • James Wangalwa & Anor v Agnes Naliaka
    [2012]
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • M/S Portreitz Maternity v James Karanga Kabia
    Civil Appeal No. 63 of 1997
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Nicholas Stephen Okaka & another v Alfred Waga Wesonga
    [2022] eKLR
  • Absalom Dova v Tarbo Transporters
    [2013] eKLR
  • Wang'ombe v Nyamu
    (Environment & Land Case 48 of 2017) [2023] KEELC 366 (KLR) (26 January 2023) (Ruling)
  • Elijah Kimani Kimuyu & 2 Others v Francis Mburu Kamau
    [2021] eKLR
  • Evans Kidero v Speaker of Nairobi City County Assembly & Another
    (2018) eKLR
  • Samuel Kimani & another v Dominic Kamiri Karanja
    [2022] eKLR
  • The County Government of Mombasa v Kooba Kenya Ltd
    Civil Appeal Appl. No. 130 of 2018
  • Karnay Zaharya & Another v Shalom Levi
    Appl. No. 80 of 2018
On appeal from
Senior Principal Magistrate's Court at Murang'a
Murang'a ELC No. 52 of 2020
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules

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, "Ndung’u v Maina (Sued in her capacity as the legal representative of the Estate of the Late Maina Mukura) (Environment and Land Appeal E024 of 2024) [2024] KEELC 5765 (KLR)", Case Analysis (2024). Notice of Motion Application dated 11th June 2024 (arising from Murang'a ELC No. 52 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5765/eng@2024-07-29

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