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ELCAllowedMakueni Judicial Review Case (Notice of Motion dated 26th August 2024)· [2025] KEELC 1124 (KLR)

Kitonyo v Mwania (Environment & Land Miscellaneous Case E008 of 2024) [2025] KEELC 1124 (KLR)

Environment and Land Court
6 March 2025
3,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on a Notice of Motion dated 26th August 2024 by Joshua Mwania Kitonyo, the unsuccessful plaintiff before the subordinate court. The Applicant sought leave for the firm of Gacau Kariuki & Co. Advocates to come on record, a stay of execution of the judgment delivered on 12th August 2024 by Honourable Martin N. Mutua (SRM) in Makueni CMELC No. E025 of 2022, and an extension of time to file a Memorandum and Record of Appeal. The suit below had concerned the allegedly fraudulent and illegal transfer of Parcel No. Makueni/Mavindini/2761, and was dismissed with no orders as to costs. The Respondent opposed the application, asserting that the Applicant held the sole title deed (issued in the Respondent's name) and thus faced no risk of substantial loss. The Applicant's further affidavit revealed that both parties held original title deeds for the same parcel. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the Court of Appeal decisions in Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kibiru, the court found substantial loss, no unreasonable delay, and offered security. Under the proviso to Section 79G of the Civil Procedure Act, delay in obtaining certified proceedings constituted sufficient cause for extension of time. Leave to change advocates was granted under Order 9 Rule 9. The application was allowed in full, with conditional stay, mutual deposit of title deeds, a Kshs. 50,000/= security deposit, and each party bearing its own costs.

Key legal issues

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01

Whether the Applicant established the prerequisites for a stay of execution under Order 42 Rule 6(2)

Holding

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/=.

Reasoning

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.

p. 5
02

Whether the Applicant was entitled to extension of time to file the Memorandum and Record of Appeal under Section 79G

Holding

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.

Reasoning

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.

p. 6
03

Whether leave should issue for a new firm of advocates to come on record after judgment under Order 9 Rule 9

Holding

Leave was granted; the application was properly made under Order 9 Rule 9 following judgment.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Leave granted to the firm of Gacau Kariuki & Co. Advocates to come on record for the Applicant
  2. 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. 3.Stay of execution of the judgment in Makueni CMELC No. E025 of 2022 pending hearing and determination of the intended appeal
  4. 4.Applicant and Respondent to deposit their respective title deeds to Parcel No. MAKUENI/MAVINDINI/2761 in court within thirty (30) days
  5. 5.Applicant to deposit Kshs. 50,000/= in court as security for due performance of such decree as may be binding on him
  6. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.