REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA
ELC MISC NO 11 OF 2023
STEPHEN MURIITHI MUTUGI.............................................PLAINTIFF
VERSUS
JAMES MWANGI KARIMA..............................................DEFENDANT
RULING
In the Application dated 23/1/2023, the Appellant seeks prayers for: -
1. The Appellant to be granted leave to file an Appeal against the Judgment and findings of the Chief Magistrate Honourable Obulutsa dated 24/10/2022 Nyahururu ELC suit No. 252 of 2018 out of time.
2. That this Court be granted a stay of execution of the Judgment and orders of 24/10/2022.
3. That the Memorandum of Appeal attached to the Application be deemed as duly filed.
4. Costs of the Application.
The same is buttressed on the grounds that: -
a. A copy of the certified Judgment and certified proceedings of the Chief Magistrate were applied for on 22/11/2022.
b. A notice of Appeal was filed dated 22/11/2022 and the same was served upon the Respondent on the same date.
c. The Appellants Counsel has been frequently checking for the certified proceedings at the Registry and are yet to be supplied with the same to date.
d. The Appellant stands to suffer a grant deal if the Application is not granted.
e. The Appellants legal representation in the lower Court was faulty and that he didn’t get proper representation which situation he intends to rely on Appeal.
In the Application the Appellant also seeks a stay of execution.
In the Replying Affidavit sworn on 17/4/2023, the Respondent, James Karima depones that the Application before the Court is fatally defective, inept and an abuse of the Court process and ought to be struck out at the very first instance. First, the firm of Muthoni Njuguna & Co Advocates is not properly on record. Not even a Notice of change of Advocates has been filed by the latter firm. Further, the Appellant was aware of the Judgment dated 24/10/2022 but took no action to file a Memorandum of Appeal. The delay in filing the Memorandum of Appeal is unexplained. He has also not satisfied the settled conditions for a grant of stay of execution pending Appeal and that he has not offered any security. there is a further Affidavit christened Replying Affidavit. The same is to the effect that the suit in the lower Court was commenced on 6/8/2015 and ended with a Judgment on 24/10/2022 and that the Applicant did not appeal within the statutory 30 days.
The delay in filing the Application and serving the same is inordinate and unexplainable, and that the Judgment of 24/10/2022 has been executed and he is now the registered proprietor of the suit land – L.R No. NYANDARUA/KAIMBAGA/211. He further depones that he was over 80 years as at the time of filing the current Application.
In the further Affidavit of the Appellant, Stephen Muriithi Mutungi, he depones that the delay in the hearing of the Application was caused by the transferring of the file from Nyahururu to Ol-kalou.
In the first place, the firm of Muthoni Njuguna is not properly on record under Order of rules 9 & 10 of the Civil Procedure Act. The firm ought to have sought leave of the Court first. Secondly, the stay of execution Application is pre-mature. The same ought to have waited for the intended Appeal to be filed. In the alternative the same should have been filed in the lower Court. Finally, and out of utmost importance one does not have to wait for the proceedings or copy of Judgment to file a Memorandum of Appeal. The same can be filed without these documents. It is only the Record of Appeal that should have awaited the proceedings and Judgment.
And as I have said before, I refuse to be referred to the sins of the previous Advocates unless they are given an opportunity as an interested party in the Application sought. If the proposed Appellant knows that he had an Advocate who was not as competent, he ought to have moved the Court earlier or even sacked him as soon as he discovered this. The Application dated 23/1/2023 is accordingly dismissed with costs.
Ruling read dated, signed and delivered at Nyandarua this 4th Day of June, 2026.
MUGO KAMAU
JUDGE
In the Presence of: -
Court Assistant: Samson
Applicant Counsel: Ms. Muthoni
Respondent Counsel: Mr. Gakenia
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