Kitonyo v Mwania (Environment & Land Miscellaneous Case E008 of 2024) [2025] KEELC 1124 (KLR)
The bottom line
#A Makueni landowner who lost his case got extra time to appeal and froze all dealings on the disputed land until the appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established the prerequisites for a stay of execution under Order 42 Rule 6(2)
The Applicant established substantial loss, absence of delay (application filed fifteen days after judgment) and offered security; stay was granted on conditions that both parties deposit their title deeds and the Applicant deposit Kshs. 50,000/=.
The court applied Order 42 Rule 6(2), which requires substantial loss, reasonable promptness and security. Given two title deeds existed for the same parcel, the Applicant would suffer substantial loss if the Respondent disposed of the land. The application was made fifteen days after judgment, so there was no delay. The Applicant's willingness to furnish security was satisfied by the deposit conditions imposed.
Whether the Applicant was entitled to extension of time to file the Memorandum and Record of Appeal under Section 79G
Extension of thirty days was granted because the delay was attributable to non-receipt of typed certified proceedings, which constitutes sufficient cause under the proviso to Section 79G.
Section 79G prescribes thirty days for filing an appeal from a subordinate court, with a proviso permitting admission out of time on good and sufficient cause. The Applicant had written on 22nd August 2024 requesting certified proceedings and attributed the delay to the unavailability of those proceedings. The court found this demonstrated sufficient cause.
Whether leave should issue for a new firm of advocates to come on record after judgment under Order 9 Rule 9
Leave was granted; the application was properly made under Order 9 Rule 9 following judgment.
Order 9 Rule 9 requires a court order for a change of advocate after judgment, effected by application with notice to all parties. The application complied with these requirements and was therefore allowed.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay of execution pending appeal; the court must prevent the subject matter from being transferred, sold or encumbered during the pendency of the appeal.
- An appeal from a subordinate court to the High Court may be admitted out of time where the appellant shows good and sufficient cause for the delay.
- Delay in receipt of typed certified proceedings constitutes sufficient cause for failure to file an appeal within the statutory period.
Court orders
#- 1.Leave granted to the firm of Gacau Kariuki & Co. Advocates to come on record for the Applicant
- 2.Thirty (30) days extension of time to file and serve the Memorandum of Appeal and Record of Appeal against the judgment of 12th August 2024
- 3.Stay of execution of the judgment in Makueni CMELC No. E025 of 2022 pending hearing and determination of the intended appeal
- 4.Applicant and Respondent to deposit their respective title deeds to Parcel No. MAKUENI/MAVINDINI/2761 in court within thirty (30) days
- 5.Applicant to deposit Kshs. 50,000/= in court as security for due performance of such decree as may be binding on him
- 6.Each party to bear its own costs
- On appeal from
- Senior Resident Magistrate's Court, Makueni
- Makueni CMELC No. E025 of 2022
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act and Order 9 Rule 9, Order 22 Rule 22, Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kemei v Chebii & 3 others (Environment and Land Appeal E016 of 2024) [2025] KEELC 3562 (KLR)[2025] KEELC 3562 (KLR)7 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kitonyo v Mwania (Environment & Land Miscellaneous Case E008 of 2024) [2025] KEELC 1124 (KLR)", Case Analysis (2025). Makueni Judicial Review Case (Notice of Motion dated 26th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1124/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.