Kai v Tosseto [2025] KEELC 2839 (KLR)

Kai v Tosseto (Environment and Land Appeal E023 of 2023) [2025] KEELC 2839 (KLR) (26 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2839 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment and Land Appeal E023 of 2023

FM Njoroge, J

March 26, 2025

Between

Lucky Kai

Appellant

and

Daniela Tosseto

Respondent

Ruling

1. The appeal herein was instituted by the appellant vide a memorandum of appeal dated 27th November 2023 and filed on the same date. The application before this court now seeks orders of stay of execution of the judgment pending hearing and determination of the appeal. Earlier on there was a similar application dated 5th December 2023 which was conditionally allowed with the appellant being ordered to file and serve a competent record of appeal within 45 days of the order in default of which the orders of stay would lapse. It is apparent that the appellant defaulted and later Mr Matini came before court and applied for an extension of time to file the record of appeal, and was on 18/11/2024 granted that extension minus the revival of the stay orders which had clearly lapsed and which revival he had not sought. The present application is opposed by the respondent on the basis that it is res judicata that earlier one. Clearly the application is res judicata and it is hereby dismissed without more. That dismissal notwithstanding, it is this same court that recently allowed the extension of the time within which to file the record of appeal and therefore there was created a legitimate expectation that the appeal will be heard on its merits. This being a court of justice, it is not meet that the order signaling intent to hear the appeal on its merits be seen to conflict with condonation of execution during the pendency of the same appeal, which would negate the very purpose of the hearing and create an absurdity. Consequently, whether the application dismissed was res judicata or not, this appeal process, having progressed this far, ought to be protected from any prejudice likely to be occasioned by execution as originally envisaged. Consequently, by virtue of the inherent power of this court, it is hereby ordered that the orders of stay of execution granted on 22/5/2024 are hereby revived and extended till the hearing and determination of the appeal. The Deputy Registrar of this court shall ensure that the lower court file record is brought up and attached to this appeal record within 7 days of this order and this appeal shall be listed for directions as to hearing on 6/5/2025.

DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 26TH DAY OF MARCH 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI