[2019] KEELC 3242 (KLR)
The court found that although the applicants did not provide an explanation for the delay in filing the appeal, the delay of one month and seventeen days was not inordinate. The court also considered that the lower court's decision would result in the relocation of the applicants, potentially causing them...
Source-derived case information.
- Citation
- [2019] KEELC 3242 (KLR)
- Parties
- Applicant: Tabitha Karangea Mithika; Applicant: Festus Muriira Mithika; Applicant: Christopher Kaberia Mithika; Respondent: Lingera Kanake
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 32 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application allowed in part, with conditions.
- Legal Topics
- Extension of Time, Stay of Execution, Boundary Disputes, Surveyors Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Karangea Mithika
Applicant
Festus Muriira Mithika
Applicant
Christopher Kaberia Mithika
Applicant
Lingera Kanake
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file an appeal against the lower court's ruling.
- 2 Whether a stay of execution pending appeal should be granted to prevent substantial loss to the applicants.
- 3 Whether the delay in filing the application was inordinate.
Ratio Decidendi
The court found that although the applicants did not provide an explanation for the delay in filing the appeal, the delay of one month and seventeen days was not inordinate. The court also considered that the lower court's decision would result in the relocation of the applicants, potentially causing them substantial loss. In balancing the interests of justice, the court allowed the extension of time and granted a stay of execution, conditional upon the applicants depositing Kshs. 50,000 as security within 30 days. The stay would remain in force for one year, provided the security was deposited, and costs would abide the outcome of the appeal.
Court Disposition
Application allowed in part, with conditions.
Orders
- Extension of time to file appeal against the ruling of 30th October 2018 is granted, subject to deposit of Kshs. 50,000 as security within 30 days.
- Stay of execution of the ruling of 30th October 2018 is granted pending appeal, to remain in force for one year upon compliance with security deposit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
MISC APPLICATION NO. 32 OF 2018
TABITHA KARENGEA MITHIKA ……………..……….. 1ST APPLICANT
FESTUS MURIIRA MITHIKA ……………………..…… 2ND APPLICANT
CHRISTOPHER KABERIA MITHIKA …………………. 3RD APPLICANT
VERSUS
LINGERA KANAKE ……….……………………………….. RESPONDENT
RULING
1. This ruling is in respect of the application filed on 18. 12. 2018 where applicants are seeking the following orders:
(i) Spent.
(ii) That this court be pleased to extend time for the applicants to file an appeal against the ruling of the Senior Resident magistrate delivered on 30th October, 2018 in Maua Chief Magistrate’s Civil Case No. 230 of 2013.
(iii) That this court do grant stay of execution of the ruling delivered on 30th October, 2018 in Maua Chief Magistrates civil case NO. 230 of 2013 pending the hearing and determination of this application.
(iv) That this honorable court do grant stay of execution of the ruling delivered on 30th October, 2018 in Maua Chief Magistrate’s Civil Case No. 230 of 2013 pending the filing, hearing and determination of the applicant’s proposed appeal.
(v) That the costs of this application be in the appeal.
2. The grounds in support of the application are stated on the face of the application and in the supporting affidavit of the 3 applicants.
3. The respondent has opposed the application via his replying affidavit filed on 27. 2.2019.
4. I have considered all the arguments raised herein. It appears that in the ruling delivered on 30. 10. 2018 the court considered the matter was resolved through the surveyors report.
5. The applicants allege that it was erroneous for the court to adopt and rely on the surveyors report while respondent’s side aver that the dispute was a boundary one hence the court was right in determining the matter via surveyor’s report.
6. I do not have the lower court’s record, including the pleadings. However I do note that the decision of the lower court will entail the relocation of the applicants who therefore may stand to suffer some substantial degree of loss of their homes.
7. However, no explanation has been advanced as to why the appeal was not filed on time yet the trial court had given a stay of 30 days.
8. Nevertheless, I do find that the delay in filing the application is not inordinate since there was a lapse of only 1 month and 17 days from the time of delivery of the ruling to the date of filing the present application.
9. I hence allow the application on the following terms;
(1) Prayer 2 and 4 are allowed whereby the applicants are to deposit a sum of Shs.50,000 in court as security within 30 days from date of delivery of this ruling failure to which the order for stay shall lapse.
(2) The stay granted in terms of prayer 4 shall remain in force for a period of 1 year if there is compliance on the issue of deposit of Kshs.50,000.
(3) The costs of the application shall abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 22ND MAY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Rimita D for applicants
Karanja holding brief for Mbaabu Inoti for respondent
All applicants
HON. LUCY. N. MBUGUA
ELC JUDGE