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ELCPartially AllowedNotice of Motion dated 13/03/2025 (arising from Bungoma CM ELC Case No. 70 of 2018)· [2025] KEELC 5395 (KLR)

Nakitare v Barasa (Environment and Land Miscellaneous Application E009 of 2025) [2025] KEELC 5395 (KLR)

Environment and Land Court
17 July 2025
ECE.C. Cherono
1,787 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court let a late land appeal proceed because illness and counsel's death explained the delay, but refused to halt execution since there was nothing to stay.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court at Bungoma by a Notice of Motion dated 13/03/2025 seeking leave to appeal out of time and stay of execution of the judgment delivered by Hon. R.N.B Maloba on 23/02/2024 in Bungoma Chief Magistrate's ELC Case No. 70 of 2018. The Applicant explained that his counsel ailing and died during the trial, he was of advanced age, was unaware of the entry of judgment, and the file had been archived; medical documents were produced. The Respondent opposed, asserting the decreed orders had been implemented, that no good explanation for the delay was given, and that he deserved the fruits of his judgment. On extension of time, the court applied section 79G of the Civil Procedure Act and the Court of Appeal's guidance in Abdul Aziz v Mungai Mathayo, holding that although the delay of over a year was inordinate, it was adequately explained by the counsel's death, the Applicant's age and illness, and the Respondent's concession that counsel had died with no evidence of who took conduct of the matter. Leave to appeal out of time was granted, with the appeal to be filed within 14 days. On stay, applying Order 42 Rule 6 and Kenya Shell Limited v Kigibu, the court found the Applicant failed to demonstrate substantial loss beyond mere assertion of appeal prospects and had not annexed a draft memorandum of appeal. Further, the trial judgment dismissed the suit with costs and granted no positive relief, so there was nothing to stay. The stay prayer failed. The motion was partially allowed; costs were ordered to abide the intended appeal.

Key legal issues

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01

Leave to appeal out of time

Holding

Leave granted where the delay of over one year was explained by the death of counsel, the Applicant's advanced age and illness, supported by medical documents

Reasoning

Section 79G requires an appeal within 30 days but permits extension upon explanation of delay. The trial court's file had been archived. The Respondent admitted counsel died and no evidence was shown of service of a judgment notice. Balancing the Applicant's right of appeal against the decree holder's rights, the delay was inordinate but adequately explained.

p. 3
02

Stay of execution pending appeal

Holding

Refused because substantial loss was not demonstrated, no draft memorandum of appeal was annexed, and the dismissal judgment conferred no positive relief capable of execution

Reasoning

Order 42 Rule 6 requires substantial loss, application without undue delay and security. The Applicant merely asserted high chances of success without showing specific loss or prejudice. The trial court dismissed the suit and awarded costs only; a dismissal order does not warrant suspension through stay, so there is effectively nothing to stay.

p. 3

Legal principles established

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  • The discretion to extend time under section 79G arises only once sufficient reason for the delay has been established
  • Substantial loss is the cornerstone of jurisdiction for granting stay of execution
  • No stay lies over a dismissal judgment that grants no positive relief capable of execution

Court orders

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  1. 1.Leave granted to the Applicant to file appeal out of time against the judgment of the Chief Magistrate's Court ELC Case No. 70 of 2018 entered on 23/02/2024
  2. 2.The appeal shall be filed within 14 days from the date of the ruling
  3. 3.Costs shall abide the intended appeal

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder XLI Rule 4 (as referred in Kenya Shell Ltd)

Cases cited (4)

  • Salat v. Independent Electoral and Boundaries Commission & 7 others
    (Application 16 of 2014) [2014] KESC 12 (KLR)
  • Ngei v Kibe & Another
    (Civil Appeal (Application) E359 of 2021) [2021] KECA 243 (KLR)
  • Abdul Aziz vs Mungai Mathayo
    (1976) Kenya LR 61,62
  • Kenya Shell Limited Vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 107
On appeal from
Chief Magistrate's Court, Bungoma
ELC Case No. 70 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave/extension of time to appeal); Order 42 Rule 6 of the Civil Procedure Rules (stay of execution)

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, "Nakitare v Barasa (Environment and Land Miscellaneous Application E009 of 2025) [2025] KEELC 5395 (KLR)", Case Analysis (2025). Notice of Motion dated 13/03/2025 (arising from Bungoma CM ELC Case No. 70 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5395/eng@2025-07-17

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