Choge v Choge (Environment and Land Miscellaneous Application E011 of 2023) [2025] KEELC 6664 (KLR)
The bottom line
#The Environment and Land Court in Kericho let a landowner appeal late, but refused to stop enforcement because a dismissed suit cannot be 'stayed'.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel for the Applicant is properly on record
Counsel was properly on record; a consent for change of advocates had been filed, satisfying Order 9 Rule 9(b).
Order 9 Rule 9 permits a change of advocate after judgment either by court order or by consent between the outgoing and incoming advocates. The court record showed a consent signed by W.K Ngenoh Lessan & Co Advocates indicating no objection to Obondo Koko & Co. Advocates acting for the Applicant, filed in the subordinate court. Compliance with rule 9(b) therefore disposes of the respondent's competence objection.
Whether time to file an appeal should be extended under Section 79G
Extension granted: sufficient explanation for delay, arguable appeal, and no uncompensatable prejudice to the respondent.
Guided by Stecol Corporation, Thuita Mwangi and Edith Gichugu Koine, the court weighed the length of delay (over six months from judgment to actual filing), the Applicant's explanation (he was not notified of the judgment date, the judgment copy showing no attendance at delivery), the arguability of the intended appeal (a ground that the trial magistrate considered unpleaded issues), and prejudice, holding any prejudice was compensable by costs.
Whether stay of execution pending appeal should be granted
Stay refused because the decree was a dismissal of the Applicant's suit - a negative order incapable of execution or stay.
Order 42 Rule 6(2) requires substantial loss, no unreasonable delay and security. Relying on Joseph Muthuri v Cooperative Bank citing Raymond M Omboga v Austine Pyan Maranga, the court held that a dismissal is a negative order incapable of execution except as to costs, so there is nothing to stay. The court also found the delay in hearing the application explained by its dismissal for want of prosecution and later reinstatement.
Costs of the application
Costs to abide the outcome of the appeal rather than follow the event immediately.
Although the general rule under Section 27 of the Civil Procedure Act is that costs follow the event, the court departed from it because the application succeeded only in part (extension of time granted, stay refused), directing that costs await the outcome of the intended appeal.
Legal principles established
#- An order dismissing a suit is a negative order incapable of execution and therefore incapable of stay.
- An arguable appeal need not necessarily succeed; the court should not delve into the merits of the intended appeal at the leave stage.
- A consent filed under Order 9 Rule 9(b) suffices for a change of advocates after judgment without a separate court order.
Court orders
#- 1.Leave granted to the Applicant to lodge an appeal out of time against the judgement and decree in Kericho CMELC Case No. 13 of 2018
- 2.The costs of the application to abide the outcome of the Appeal
- On appeal from
- Chief Magistrate's Court, Kericho (ELC)
- Kericho CMELC No. 13 of 2018
- Jurisdiction invoked
- Sections 3, 3A & 79G of the Civil Procedure Act; Orders 42 & 51 of the Civil Procedure Rules; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Choge v Choge (Environment and Land Miscellaneous Application E011 of 2023) [2025] KEELC 6664 (KLR)", Case Analysis (2025). Kericho CMELC Case No. 13 of 2018 (application dated 14th December, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6664/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.