[2022] KEELC 581 (KLR)
The court found that the dispute between the parties concerns ownership and title to the suit property, which are substantive issues that ought to be determined on merit after hearing all parties. The court exercised its discretion to grant leave to the applicant to file an appeal out of time, finding that the...
Source-derived case information.
- Citation
- [2022] KEELC 581 (KLR)
- Parties
- Applicant: Peter Ndambiri Njagi; Respondent: Quasim Hirsi Karah; Respondent: Farah Hassan Abdullahi; Respondent: Amina Abdullahi; Respondent: Mohamed Abubakar Mohamed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 2 of 2021
- Procedural Posture
- Notice of Motion / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed in part
- Judges
- LC Komingoi
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Ownership Disputes, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndambiri Njagi
Applicant
Quasim Hirsi Karah
Respondent
Farah Hassan Abdullahi
Respondent
Amina Abdullahi
Respondent
Mohamed Abubakar Mohamed
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the decision declining to set aside ex parte orders.
- 2 Whether an order of stay of execution of the orders made on 27th August 2020 should be granted pending the intended appeal.
- 3 Whether the memorandum of appeal filed should be deemed as duly filed upon grant of leave.
Ratio Decidendi
The court found that the dispute between the parties concerns ownership and title to the suit property, which are substantive issues that ought to be determined on merit after hearing all parties. The court exercised its discretion to grant leave to the applicant to file an appeal out of time, finding that the interests of justice would be best served by allowing the appeal to proceed. The court also granted a stay of execution of the orders made on 27th August 2020, pending the hearing and determination of the intended appeal, to preserve the subject matter. The grant of these orders was made conditional upon the applicant paying throw away costs to the 1st and 2nd respondents within...
Court Disposition
application allowed in part
Orders
- Leave granted to the applicant to file and/or lodge an appeal out of time against the decision delivered on 30th March 2021.
- Order of stay of execution of the orders made on 27th August 2020 granted pending hearing and determination of the intended appeal.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO.2 OF 2021
PETER NDAMBIRI NJAGI...........................................................APPLICANT
=VERSUS=
QUASIM HIRSI KARAH....................................................1ST RESPONDENT
FARAH HASSAN ABDULLAHI.......................................2ND RESPONDENT
AMINA ABDULLAHI........................................................3RD RESPONDENT
MOHAMED ABUBAKAR MOHAMED.........................4TH RESPONDENT
RULING
1. This is the Notice of Motion application dated 6th May 2021 brought under Order of the Civil Procedure Rules, Section 1A, 1B and 3A 63(e), 79G and 95 of the Civil Procedure Act, Article 259 of the Constitution of Kenya and all enabling provisions of the law.
2. It seeks orders;
1. Spent
2. Spent.
3. That this honourable court be pleased to grant the Applicant leave to file and/or lodge an appeal out of time against the decision delivered on the 30th March 2021 by the honourable Principal Magistrate, honourable Mr. Kagoni E. A declining to set aside the exparte orders of 27th August 2020.
4. That this honourable court be pleased to grant an order of stay of execution of the orders made on 27th August 2020 by the honourable Kagoni E. A. in Nairobi CMCC No 3073 of 2010 pending hearing and determination of the intended appeal.
5. That upon the grant of leave to appeal the memorandum of appeal filed herewith be deemed as duly filed subject to payment of the requisite fees.
6. That the costs of this application be paid by the Respondents.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 19.
4. The application is supported by the affidavit of Peter Ndambiri Njagi the Applicant herein sworn on the 6th May 2021.
5. The application is opposed. There is a replying affidavit sworn by Qasim Hirsi Karah, the 1st Respondent herein sworn on the 17th may 2021.
6. On the 15th June 2021, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.
7. I have considered the notice of motion and the affidavit in support. I have also considered the response thereto and the written submissions.
8. It is not in dispute that the issue between the parties is in regard to ownership and title to the suit property. These are issues which ought to be interrogated by the court by hearing all the parties.
9. I find merit in this application and grant orders in terms of prayer 3, 4 and 5 of the notice of motion on condition that the Applicant do pay throw away costs to the 1st and 2nd Respondents of Kshs. 15,000 within twenty one (21) days from the date of this ruling. The costs of this application be borne by the Applicant.
It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBI THIS 24TH DAY OF MARCH 2022.
................................
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Applicant
Ms Nganyi for Mr. Khaemba for the Respondents
Steve- Court Assistant