Gichomo v Abuonji & another [2023] KEELC 22535 (KLR)

Gichomo v Abuonji & another (Environment & Land Case 292 of 2011) [2023] KEELC 22535 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22535 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 292 of 2011

AA Omollo, J

December 7, 2023

Between

Francis Gichomo

Plaintiff

and

Michael Abuonji

1st Defendant

Nairobi City County

2nd Defendant

Ruling

1. The 2nd Defendant brought the application dated 27th April 2023 under the provisions of section 1A and 3A of the Civil Procedure Act and Orders 42 rule 6; 50 rule 6 and 51 rule 1 of the Civil Procedure Rules. The Applicant sought the orders;a.Spentb.That the Court does grant an order of stay of execution staying the judgement delivered on 8th December 2017 pending the hearing and determination of this application and the intended appealc.That this Court be pleased to enlarge time to file the record of appeal against the judgement by 30 days.

2. The application was supported by the applicant’s affidavit and the grounds listed on its face inter alia;i.The Defendant had filed a notice of appeal against the judgement and requested for certified copies of the proceedings and which proceedings were collected on 5th December 2022ii.That due to the interlocutory applications in the intervening period, the 2nd Defendant/Applicant failed to note the date of the certificate of delay (dated 14th Dec. 2022)iii.The sixty day to file the record of appeal expired on 18th March 2023

3. The Plaintiff opposed the application by filing the replying affidavit sworn on 29th May 2023. The Respondent deposed that the application is frivolous as the same is filed after undue delay and without any justification. That the Applicant has been wasting the court’s time filing frivolous application instead of seeking for enlargement of time. He averred that in the event this court deems it just to grant the orders sought, he prayed that the Applicant be directed to deposit the judgement sum in a joint interest account of the advocates on record.

4. The parties filed their respected submissions which I have read and considered. Counsel for the Applicant submitted that the delay was purely an inadvertence on their part which mistake should not be visited upon the Applicant. The Applicant contended that the delay was not inordinate since the application was filed one month after the expiry of the time.

5. It is not in dispute that the judgement to be appealed against was delivered on 8th December 2017. In the present application, there are no copies of previous applications annexed that explains the delay. This court is only aware of the application dated 6th December 2022 which was subsequently withdrawn. The Applicant has also not explained the prejudice he will suffer if the orders of stay of execution is not granted.

6. The power to extend leave and grant stay of execution is discretionary and for a party to enjoy favourable exercise of the discretion, a justification must be put forth. The Applicant argued that both parties have been unable to enjoy the fruits of the judgement and it serves the interest of justice that the matter be dealt with conclusively.

7. Under the provisions of order 42, the filing of a notice of appeal is sufficient for purposes of lodging the appeal to the Court of Appeal and so the Applicant was not required to provide grounds of appeal as submitted by the Plaintiff/Respondent. Although there is delay which has been explained, I will exercise discretion to extend the time for filing the record of appeal by a period of 21 days from the date of this ruling. However, I decline to grant the order for stay of execution for I find no sufficient cause has been demonstrated by the Applicant.

8. The application is partially allowed tp the extent of time to file the record of appeal extended for a period of 21 days as stated in paragraph 7 above. The costs of the application awarded to the Plaintiff/Respondent.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF DECEMBER 2023A. OMOLLOJUDGE