[2020] KEELC 1848 (KLR)
The court found that the applicants failed to file a Notice of Appeal within the 14-day period prescribed by Rule 75(2) of the Court of Appeal Rules, 2010. No application for extension of time to file the Notice of Appeal was before the court. As a result, the Notice of Appeal on record was incompetent and could not...
Source-derived case information.
- Citation
- [2020] KEELC 1848 (KLR)
- Parties
- Applicant: Kesi Kahindi & 23 Others; Respondent: Philip Kimeu & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 183 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Adverse Possession, Notice of Appeal, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kesi Kahindi & 23 Others
Applicant
Philip Kimeu & Another
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an order of stay of execution pending appeal.
- 2 Whether a competent Notice of Appeal was filed within the prescribed time to anchor an appeal.
Ratio Decidendi
The court found that the applicants failed to file a Notice of Appeal within the 14-day period prescribed by Rule 75(2) of the Court of Appeal Rules, 2010. No application for extension of time to file the Notice of Appeal was before the court. As a result, the Notice of Appeal on record was incompetent and could not anchor an appeal to the Court of Appeal. Without a competent Notice of Appeal, there was no basis for granting a stay of execution pending appeal. The application for stay was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for stay pending appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC NO. 183 OF 2013 (OS)
KESI KAHINDI & 23 OTHERS ....................................... APPLICANTS
VERSUS
PHILIP KIMEU & ANOTHER .....................................RESPONDENTS
RULING
(Application for stay pending appeal; no competent notice of appeal; futile to make an order for stay pending appeal when no competent appeal can be filed; application dismissed)
1. The application before me is that dated17 March 2020 filed by the unsuccessful plaintiffs. It is an application for stay pending appeal and the same is opposed.
2. To put matters into context, through an Originating Summons filed on 20 August 2013, the applicants sought to be declared as owners of the Plot No. 190 Section I/Mainland North, through the doctrine of adverse possession. The suit was resisted and through my judgment delivered on 11 March 2020, I dismissed the suit. Part of the reasons that led me to dismiss the suit was a report that had been prepared by the Deputy Registrar in the year 2015, which demonstrated that all the developments on the land were recent, and did not back up the assertion of the applicants that they have been in occupation in excess of a period of 12 years. There was also evidence of continued invasion of the suit land by new persons with the land changing character with every passing day. Among the claimants was one who was only 5 years as at the year 2001, which would the minimum period of commencement of possession (in order to support a claim for adverse possession that was filed in 2013 for 12 years of possession need to lapse), and it was clear to me that he could not possibly have had the capacity to seize possession of land at that tender age in order to support a suit by adverse possession. In my judgment, I gave liberty to the respondents to seek the eviction of the applicants from the suit land, since their claim for the land had failed. In this application, the applicants want a stay of execution of the judgment pending appeal.
3. The first thing that I need to be satisfied is that the applicants have exercised their right of appeal by filing a Notice of Appeal. I have seen a Notice of Appeal in the file which was lodged on 2 April 2020. It will be recalled that judgment was delivered on 11 March 2020, meaning that the Notice of Appeal needed to be filed, latest, by 25 March 2020, following the provisions of Rule 75 (2), of the Court of Appeal Rules, 2010, which stipulates that a Notice of Appeal needs to be filed within 14 days of the judgment.
4. I have no application before me for extension of time for filing the Notice of Appeal, and that being the case, the Notice of Appeal is incompetent and incapable of anchoring an appeal to the Court of Appeal. Since there cannot be filed an appeal to the Court of Appeal, as there is no competent Notice of Appeal, it is pointless issuing an order of stay pending appeal.
5. For that simple reason, this application must fail, and it is hereby dismissed with costs.
6. Orders accordingly.
DATED AND DELIVERED THIS 23RD DAY OF JUNE 2020
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT MOMBASA