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ELCAllowedNotice of Motion application dated 25th November 2024· [2025] KEELC 5856 (KLR)

Gonzalez v Ngatia & another (Environment and Land Miscellaneous Application E014 of 2024) [2025] KEELC 5856 (KLR)

Environment and Land Court of Kenya
28 May 2025
4,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court let a property owner appeal a month late and stopped demolition of his property until the appeal is decided, conditional on a Kshs 1 million deposit.

What this practically means

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Executive summary

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The Appellant/Applicant, Bruno Manuel Gonzalez, moved the Environment and Land Court at Kwale by Notice of Motion dated 25th November 2024 under Sections 3A and 79G of the Civil Procedure Act and Order 42 Rule 6(1) and Order 50 Rule 6 of the Civil Procedure Rules, 2010, seeking extension of time to appeal against the judgment of Senior Principal Magistrate Omido J.M in CM ELC No E065 of 2021 delivered on 5th October 2022, and a stay of execution of that judgment and the decree issued on 19th October 2022. The Respondents opposed through a Replying Affidavit sworn by the 2nd Respondent, maintaining they were the registered owners, had duly served the applicant and had obtained a regular default judgment. The applicant argued the intended appeal was arguable on service, pecuniary jurisdiction (the property allegedly exceeding the magistrate's Kshs 7,000,000 limit) and res sub judice given Kwale ELC No 68 of 2021. Framing three issues - extension of time, stay, and costs - the court found the appeal arguable on all three contested issues, held the one-month delay not inordinate, and found substantial loss proved since demolition of the property would render the appeal nugatory. Though the applicant proposed no security, the court fixed a Kshs 1,000,000 deposit into a joint escrow account of counsel within 45 days, failing which the stay lapses. The application was allowed with costs to the applicant, with mention on 30th July 2025 for compliance, admission and directions under Section 79B.

Key legal issues

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01

Extension of time to file appeal under Section 79G

Holding

Leave to appeal out of time granted; the delay of one month was not inordinate, the intended appeal was arguable, and the memorandum of appeal was filed contemporaneously with the application

Reasoning

The court applied Section 79G of the Civil Procedure Act and the principles in Salat v IEBC and Thuita Mwangi v Kenya Airways. It examined the draft memorandum of appeal and found three arguable issues: service of summons, pecuniary jurisdiction of the lower court and res sub judice. The delay was about one month and was explained by awaiting the ruling of a prior application in the lower court. Discretion was therefore exercised in the applicant's favour.

p. 6
02

Stay of execution pending appeal under Order 42 Rule 6(2)

Holding

Stay granted: substantial loss was established because demolition of the property would render the appeal nugatory, the application was made within a reasonable time, and the court set its own security of Kshs 1,000,000

Reasoning

The court applied the three conditions under Order 42 Rule 6(2): substantial loss, reasonable delay and security. Both parties held title deeds to the suit property, but the applicant was in occupation and the respondents had begun pulling down the wall fence. If the appeal succeeded after demolition, the loss would be irreparable. Although the applicant proposed no security, the court fixed Kshs 1,000,000 to be deposited in a joint escrow account, with the stay lapsing on default.

p. 8
03

Costs of the application

Holding

Costs awarded to the Appellant/Applicant because the application succeeded

Reasoning

Section 27(1) of the Civil Procedure Act provides that costs follow the event. Having found the application successful, the court held the applicant entitled to costs of the application.

p. 9

Legal principles established

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  • An applicant seeking enlargement of time must show good and sufficient cause for filing the appeal out of time
  • The purpose of a stay of execution pending appeal is to preserve the subject matter of the appeal
  • Security under Order 42 Rule 6 guarantees due performance of the decree, not punishment of the judgment debtor
  • Costs follow the event under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.Leave granted to the Applicant to file appeal out of time against the judgment in CM ELC No E065 of 2021
  2. 2.Applicant to file and serve Memorandum of Appeal within 14 days and compile the Record of Appeal within 21 days
  3. 3.Execution of the Judgment/decree in CM ELC No E065 of 2021 stayed pending the hearing and determination of the appeal
  4. 4.Appellant/Applicant to deposit Kshs 1,000,000 in a joint escrow bank account in the names of M/s. Sachdeva, Nadhan & Swaleh and M/s. Chimera, Kamotho & Company Advocates within 45 days
  5. 5.In default of compliance with the deposit order, the stay of execution shall automatically lapse and the Respondents shall be at liberty to execute
  6. 6.Mention on 30th July 2025 for ascertaining compliance, admission of the appeal and taking directions under Section 79B of the Civil Procedure Act and Orders 42 Rules 11, 13 and 16
  7. 7.Costs of the application granted to the Appellant/Applicant
On appeal from
Senior Principal Magistrate's Court (CM ELC No E065 of 2021)
CM ELC No E065 of 2021
Jurisdiction invoked
Sections 3A and 79G of the Civil Procedure Act, Cap. 21; Order 42 Rules 6(1) 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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Cite this brief

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Cite this brief

Caselaw, "Gonzalez v Ngatia & another (Environment and Land Miscellaneous Application E014 of 2024) [2025] KEELC 5856 (KLR)", Case Analysis (2025). Notice of Motion application dated 25th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5856/eng@2025-05-28

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