[2021] KEELC 127 (KLR)
The court found that the applicant failed to demonstrate substantial loss or justify the delay in filing submissions and seeking relief. The court noted that the applicant's counsel had ample opportunity to address any e-filing difficulties or seek an extension of time but failed to act diligently. The application...
Source-derived case information.
- Citation
- [2021] KEELC 127 (KLR)
- Parties
- Appellant: Eustace Karigicha; Respondent: John Gitonga Geoffrey
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 17 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Setting Aside Judgment
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Substantial Loss, Court E Filing, Delay in Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eustace Karigicha
Appellant
John Gitonga Geoffrey
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Setting Aside Judgment
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay and setting aside judgment was filed without inordinate delay.
- 3 Whether the applicant is ready to offer security for due performance of the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss or justify the delay in filing submissions and seeking relief. The court noted that the applicant's counsel had ample opportunity to address any e-filing difficulties or seek an extension of time but failed to act diligently. The application for stay was dismissed as the order sought to be stayed was negative and not capable of execution. The application to set aside the judgment was also dismissed due to lack of merit, as the applicant did not act promptly or provide sufficient justification for the delay. The court concluded that the application lacked merit and dismissed it with no order as to costs.
Court Disposition
application dismissed
Orders
- The application dated 29.7.2021 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC APPEAL NO. 17 OF 2021
EUSTACE KARIGICHA ....................................................................APPELLANT
VERSUS
JOHN GITONGA GEOFFREY........................................................RESPONDENT
RULING
1. The application before the court is the one dated 29. 7.2021 seeking stay of execution of the judgment made on 22. 1.2020.
2. The application is supported by an affidavit of Kiruai Mukonosworn on 24. 1.2021.
3. Further the applicant seeks to set aside judgment delivered on 21. 7.2021.
4. Though served, the respondent has not opposed the application.
5. The applicant has to prove substantial loss if the stay is not granted; that the application was filed without inordinate delay; that he is ready to offer security for the due performance of the decree should the appeal be unsuccessful and lastly; that it is in the interest of justice to allow for stay pending the hearing of the appeal.
6. The applicant states he was unable to file submissions on time hence the appeal was dismissed on 21. 7.2021 without considering his submissions.
7. On the issue of stay, the court merely gave a negative order. It cannot be executed and hence guided by Milcah Jeruto –vs- Fina Bank Ltd. [2013] eKLRI find no merits in this prayer.
8. Coming to the issue of setting aside, the applicant’s counsel has sworn an affidavit blaming court e-filing system for his predicament. The record shows the court had previously indulged him since 3. 2.2021. If he had difficulties and was diligent enough to adhere to the court orders, there was nothing stopping him from making an appropriate request so soon thereafter in the month of April, May and or June. He could have an application for the arrest of the delivery of judgment in July 2021. Instead the applicant waited until the fateful day.
9. Further if indeed the submissions were duly filed the following day as alleged counsel would have sought for the extension of time soon thereafter and not await for a whole three months.
10. In the circumstances, I find the application lacking merits. The same is dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 15TH DAY OF DECEMBER, 2021
IN PRESENCE OF:
MISS MURITHI FOR APPLICANT
GICHUNGE FOR RESPONDENT
COURT ASSISTANT - KANANU
HON. C.K. NZILI
ELC JUDGE