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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 7142 (KLR)

Nyaga v Yawa (Environment and Land Appeal E001 of 2024) [2024] KEELC 7142 (KLR)

Environment and Land Court
31 October 2024
2,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated an appeal missed because counsel was robbed, but refused to pause the Tribunal's order since no real loss was shown.

What this practically means

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Executive summary

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The Appellant filed an application dated 9th July 2024 under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 42 and 51 of the Civil Procedure Rules seeking reinstatement of an appeal dismissed for non-attendance on 20th June 2024, and a stay of execution of the Ruling and Order of Hon Gakuhi Chege (Vice Chair) in Mombasa BPRT Case No. E078 of 2021 pending the appeal. Counsel for the Appellant explained his absence by injuries sustained when attacked by robbers, supported by a P3 form. On reinstatement, the court applied Order 12 Rules 1 and 6 and the Ivita v Kyumbu test of prolonged and inexcusable delay. It found the application filed promptly (about three weeks after dismissal), the advocate's indisposition a reasonable excuse, and reinstated the appeal in the interest of justice. On stay, the court set out the Order 42 Rule 6(2) conditions (substantial loss, no unreasonable delay, security) and the twin nugatory-appeal principles from the Court of Appeal authorities. It perused the memorandum of appeal and the Tribunal's judgment, noting that the Vice Chair had considered both valuation reports and the lettable area, and found the applicant had not demonstrated substantial loss or that the appeal would be rendered nugatory. The application succeeded in part: the appeal was reinstated for hearing but stay of execution was refused. As the application was undefended, there was no order as to costs. Judgment delivered at Mombasa on 31st October 2024 by N.A. Matheka, Judge. The judgment contains internal inconsistencies in the BPRT case number (E079 vs E078) and the ruling's delivery date (2021 vs 2023).

Key legal issues

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01

Reinstatement of an appeal dismissed for non-attendance

Holding

The appeal was reinstated because the delay was not inordinate and the advocate's absence was excusable (he was indisposed following a robbery attack, evidenced by a P3 form).

Reasoning

The court applied Order 12 Rule 1 (dismissal for non-attendance) and Order 12 Rule 6(1) (right to apply for reinstatement). Applying Ivita v Kyumbu, the test is whether the delay is prolonged and inexcusable and whether justice can still be done. The application was filed about three weeks after dismissal, and counsel's affidavit explained his absence by injuries sustained in a robbery, supported by a P3 form. The court found no inordinate delay and reasonable grounds, and reinstated the appeal in the interest of justice and fairness.

p. 2
02

Stay of execution of the Tribunal's ruling pending appeal

Holding

Stay was refused because the applicant failed to demonstrate any of the conditions in Order 42 Rule 6(2), notably substantial loss and that the appeal would be rendered nugatory if stay were denied.

Reasoning

The court restated the twin principles from Reliance Bank v Norlake Investments and Chris Munga N. Bichange: the appeal must be arguable and, if successful, not rendered nugatory. It also invoked Mohamed Salim T/A Choice Butchery on balancing the right of appeal against the plaintiff's right to enjoy the fruits of judgment. On perusal of the memorandum of appeal and the Tribunal's judgment, the Vice Chair had considered both valuation reports and the lettable area; the applicant did not show substantial loss or nugatory-ness.

p. 4

Legal principles established

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  • The dismissal of counsel's non-attendance should not be visited on an innocent litigant where the delay is not inordinate and the excuse is reasonable; a suit dismissed for non-attendance may be reinstated in the interest of justice.
  • An applicant for stay of execution pending appeal must satisfy the Order 42 Rule 6(2) conditions: substantial loss, application without unreasonable delay, and security.
  • Mere commencement or likelihood of execution does not amount to substantial loss; the applicant must show execution will negate the core of the appeal.

Court orders

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  1. 1.The appeal is reinstated for hearing
  2. 2.No order as to costs, the application having succeeded only in part and being undefended

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B (and 1A(2)), 3A
  • Civil Procedure RulesOrder 42 Rule 6 (including 6(2)), Order 51, Order 12 Rule 1, Order 12 Rule 6(1)

Cases cited (6)

  • Ivita v. Kyumbu
    (1984) KLR 441
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange v Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery v Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997, at Page 4
On appeal from
Mombasa BPRT (Business Premises Rent Tribunal)
Mombasa BPRT Case No. E078 of 2021 (also referred to in the judgment as Case No. E079 of 2021)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 and Order 51 of the Civil Procedure Rules (appellate/stay jurisdiction over the Tribunal decision)

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, "Nyaga v Yawa (Environment and Land Appeal E001 of 2024) [2024] KEELC 7142 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7142/eng@2024-10-31

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