Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment· [2024] KEELC 6305 (KLR)

Muniko & another v Mahindi & 2 others (Environment and Land Miscellaneous Application 4 of 2023) [2024] KEELC 6305 (KLR)

High Court of Kenya
24 September 2024
GOG.M.A Ongondo
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court let a deceased party's family continue a land appeal, granting extra time and blocking eviction until the appeal is decided.

What this practically means

#

Executive summary

#
This is a ruling of the High Court at Migori (G.M.A Ongondo, J) on a notice of motion dated 26th October 2023 by the applicants, the original 2nd applicant having died. They sought: substitution of Sabastian Mwita Mwera (deceased) with Pamela Makaka as legal representative; stay of execution pending an intended appeal; leave to appeal out of time against the judgment of Hon. Moses Oyoko Obiero (SPM) in Kehancha SPMC ELC No. 31 of 2019 delivered on 9th March 2023; and that a draft memorandum of appeal be deemed filed. The trial court had found the applicants to be trespassers on plot No. 76 B Ntimaru Market, ordered eviction, a permanent injunction and damages of Kshs. 300,000/-. The 1st respondent opposed, arguing the delay was inordinate, the decree was negative and incapable of stay, and the appeal lacked merit. In written submissions, counsel for the applicants relied on sections 1A, 2 and 79G of the Civil Procedure Act and Orders 24 and 42 of the Civil Procedure Rules; the respondents invoked Article 50(1) and the right to enjoy the fruits of judgment. The court held the limited grant entitled the 2nd applicant to substitute the deceased; that the roughly eight-month delay was satisfactorily explained by counsel's failure to update the clients and the death of the original 2nd applicant; that the draft memorandum raised arguable issues on ownership of the suit land; and that execution would disrupt the applicants' livelihood and render the appeal nugatory, contrary to Articles 25(c), 48 and 50(1). The application was allowed in its entirety, with the appeal to be filed and served within thirty days failing which the orders would lapse automatically, and costs reserved to abide the outcome of the intended appeal.

Key legal issues

#
01

Whether the deceased original 2nd applicant could be substituted by his legal representative

Holding

The 2nd applicant, holding a limited grant, is entitled to substitute the deceased and pursue the prospective appeal

Reasoning

The court noted the death certificate and limited grant annexed (PM1 and PM2), and relying on section 2 of the Civil Procedure Act, section 82 of the Law of Succession Act and Rajesh Chudasama v Sailesh Chudasama, held the legal representative mandated to substitute the deceased and continue with the intended appeal.

p. 3
02

Whether stay of execution and leave to appeal out of time should be granted

Holding

Both were granted: the delay of about eight months was explained (counsel's failure to update clients, the death of the applicant), the appeal was arguable, and execution would render it nugatory and disrupt the applicants' livelihood

Reasoning

Applying Order 42 Rule 6(2) and section 79G, the court found the delay satisfactorily explained, the draft memorandum raised triable issues on ownership of the suit land and applicable county rules, and the applicants' right of access to justice under Articles 25(c), 48 and 50(1) warranted the discretionary relief.

Legal principles established

#
  • Extension of time is an equitable remedy available only to a deserving party, granted at the court's discretion upon good and substantial reasons for delay
  • Stay of execution requires substantial loss, absence of unreasonable delay, and security for due performance of the decree
  • In deciding stay and extension of time, the court considers the interest of justice, whether the appeal is arguable and whether refusal would render the appeal nugatory

Court orders

#
  1. 1.Substitution of the name of Sabastian Mwita Mwera (deceased) with Pamela Makaka as legal representative of the deceased's estate
  2. 2.Stay of execution against the applicants pending the hearing and determination of the intended appeal
  3. 3.Leave to appeal out of time against the judgment delivered on 9th March 2023 in Kehancha Senior Magistrate's Court ELC No. 31 of 2019
  4. 4.The appellants' draft memorandum of appeal deemed as duly filed upon payment of the requisite court fees
  5. 5.The applicants to formally file and serve the appeal within thirty days failing which the orders granted shall lapse automatically
  6. 6.Costs of the application to abide the outcome of the prospective appeal
On appeal from
Kehancha Senior Principal Magistrate's Court (Environment and Land)
ELC No. 31 of 2019
Jurisdiction invoked
Sections 75 and 79G of the Civil Procedure Act (Chapter 21, Laws of Kenya); Order 42 Rule 6 and Order 24 Rule 4(4) of the Civil Procedure Rules, 2010; Articles 25(c), 48 and 50(1) of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muniko & another v Mahindi & 2 others (Environment and Land Miscellaneous Application 4 of 2023) [2024] KEELC 6305 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6305/eng@2024-09-24

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