Mahugu v Kipchumba & 37 others; Kipkosgei (Cross Appellant) (Environment and Land Appeal E022 of 2022) [2024] KEELC 6300 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Application is res judicata
- 2.Whether the firm of Kutto & Kaira Nabasenge is properly on record
- 3.Whether the prayer for extension of time is merited and whether this court can validate a Cross-Appeal filed out of time
- 4.What is the status of the Appeal herein
Key legal issues
#Whether the application was res judicata given prior dismissed stay applications
Not res judicata; Order 42 Rule 6 expressly entitles a party to bring a fresh stay application in the appellate court notwithstanding refusal in the trial court - a special circumstance exempting the motion from res judicata
The court accepted that res judicata applies to applications within the same suit per Uhuru Highway Development Ltd. However, the earlier applications were made under different provisions and in different circumstances, and Order 42 Rule 6 expressly allows the appellate court to consider a stay application whether or not the trial court granted or refused one. This statutory carve-out constitutes the 'special circumstances' exception recognised by the Supreme Court in John Florence Maritime Services Ltd.
Whether the incoming firm of advocates was properly on record
Properly on record; Order 9 Rule 9 does not apply to appeals since an appeal constitutes new proceedings
Relying on Tobias M. Wafubwa v Ben Butali, the court held that an appeal is not a continuation of the lower court proceedings but commencement of new proceedings in another court, where parties may choose counsel freely. Order 9 Rule 9 protects advocates in the court that entered judgment; its rationale does not extend to appellate proceedings.
Whether extension of time should be granted and the Cross-Appeal deemed duly filed
Refused - the 1.5-year delay was inordinate and unexplained, the cross-appeal was not arguable, and the Appellant and Respondents would suffer prejudice
Applying Paul Musili Wambua, the court weighed the length and reason for delay (about 1.5 years from service of the Memorandum of Appeal), the litigant's own vigilance, arguability of the cross-appeal and prejudice. The Cross-Appellant's excuse of ignorance of judgment was undermined by his own inactivity. The respondents had paid the decretal sum and awaited registration since 2013.
Status of the appeal after the consents
The appeal was properly and wholly withdrawn upon adoption of the consents, terminating it even vis-à-vis the Cross-Appellant
Citing Salat v IEBC, the court held that withdrawal of an appeal is an appellant's unfettered right requiring no consent from other parties. Since no record of appeal had been filed and the appeal was not set down, no leave was needed. Once withdrawn, nothing remained for the court's jurisdiction, and stay pending appeal could not issue.
Legal principles established
#- The doctrine of res judicata applies to applications decided within the same suit, but Order 42 Rule 6 expressly permits a fresh application for stay of execution in the appellate court notwithstanding that a similar application was refused by the trial court
- Order 9 Rules 9 and 10 of the Civil Procedure Rules do not apply to appeals; a party may engage new counsel on appeal without leave or a Notice of Change of Advocates
- There is no fixed statutory timeline for filing a cross-appeal from a subordinate court, but it must be filed within a reasonable time; extension of time is governed by the Wambua factors of length of delay, reason, chances of success and prejudice
- A party's right to withdraw an appeal is an unfettered right which cannot be abridged, and withdrawal of the appeal terminates it even as against a party not party to the consent
Court orders
#- 1.The Cross-Appeal filed out of time is not deemed duly filed; extension of time is refused and the Cross-Appeal is improperly before the court
- 2.The prayer for stay of execution of the judgment/decree of the Eldoret Chief Magistrate's Court dated 2nd August 2022 is refused as there is no appeal or cross-appeal pending
- 3.The Cross-Appellant's Notice of Motion dated 7th May 2024 is dismissed with costs to the Appellant and the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Eldoret Chief Magistrate's Court
- CMCC No. 742 of 2016
- Jurisdiction invoked
- Appellate jurisdiction over appeals from subordinate courts; Section 79G and Section 95 of the Civil Procedure Act; Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules
- Consolidated with
- ELC Appeal No. E024 of 2022 (marked settled by consent)
Relief refused
#Stay of execution of the judgment/decree of the Eldoret CM's Court dated 2nd August 2022 and suspension of the Notices of Sale
The appeal had been withdrawn by consent and the Cross-Appeal was not properly on record, so there is no pending appeal to stay execution against
Deeming of the Cross-Appeal dated 30th January 2024 as duly filed / extension of time
Inordinate and unexplained delay of approximately 1.5 years; no reasonable excuse; no arguable grounds; prejudice to the Appellant and Respondents
Costs
The Notice of Motion is dismissed with costs to the Appellant and the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the Cross-Appellant’s Notice of Motion is unmerited and is dismissed with costs to the Appellant and the Respondents.
It follows that the court cannot stay execution of the decree of the lower court since there is no appeal or Cross-appeal pending.
This court finds that the Cross-Appellant is not entitled to grant of the order extending time for filing of the Cross-Appeal out of time, or that the Cross-Appeal be deemed to have been duly filed.
For that reason, the instant motion is exempt from the doctrine of res judicata.
Order 9 Rule 9 and 10 of the Civil Procedure Rules does not therefore apply in instances of an appeal.
It is for this reason that the Court finds and holds that the Appeal was properly withdrawn as between not only the Appellant and the Respondents, but also with respect to the Cross-Appellant herein.
Issues in the judgment
#Chronological inconsistency in the narration of the Cross-Appellant's prior applications - an application 'dated 13th February, 2023' is described as having been dismissed on '30th January, 2024'
The judgment refers to Appeal No. E024 of 2024 whereas earlier passages consistently cite Appeal No. E024 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mahugu v Kipchumba & 37 others; Kipkosgei (Cross Appellant) (Environment and Land Appeal E022 of 2022) [2024] KEELC 6300 (KLR)", Case Analysis (2024). ELC Appeal (Eldoret) – Notice of Motion dated 7th May 2024 arising from CMCC No. 742 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6300/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.