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ELCPartially AllowedKericho CMELC Case No. 13 of 2018 (application dated 14th December, 2022)· [2025] KEELC 6664 (KLR)

Choge v Choge (Environment and Land Miscellaneous Application E011 of 2023) [2025] KEELC 6664 (KLR)

Environment and Land Court of Kenya
2 October 2025
5,814 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by L. A. Omollo J of the Environment and Land Court at Kericho determines the Applicant's Notice of Motion dated 14th December 2022 seeking stay of execution of the judgment of 10th August 2022 in Kericho CMELC Case No. 13 of 2018, which dismissed his suit, and extension of time to file an appeal under Section 79G of the Civil Procedure Act. The Respondent opposed, arguing that no appeal existed, that the application was defective, that there was inordinate delay, and that counsel was improperly on record. The court framed four issues. On the first, it found that a consent for change of advocates had been filed, satisfying Order 9 Rule 9(b). On extension of time, applying Stecol Corporation, Thuita Mwangi and Edith Gichugu Koine, it found the Applicant had given sufficient explanation for the delay (he was not notified of the judgment delivery date), that the draft Memorandum of Appeal raised an arguable ground (the trial magistrate allegedly considered unpleaded issues), and that the Respondent would suffer no prejudice incapable of compensation by costs; leave to appeal out of time was granted. On stay, however, relying on Joseph Muthuri v Cooperative Bank, the court held the dismissal of the Applicant's own suit was a negative order incapable of execution or stay. Costs were ordered to abide the outcome of the appeal.

Key legal issues

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01

Whether counsel for the Applicant is properly on record

Holding

Counsel was properly on record; a consent for change of advocates had been filed, satisfying Order 9 Rule 9(b).

Reasoning

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.

p. 7
02

Whether time to file an appeal should be extended under Section 79G

Holding

Extension granted: sufficient explanation for delay, arguable appeal, and no uncompensatable prejudice to the respondent.

Reasoning

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.

p. 11
03

Whether stay of execution pending appeal should be granted

Holding

Stay refused because the decree was a dismissal of the Applicant's suit - a negative order incapable of execution or stay.

Reasoning

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.

p. 12
04

Costs of the application

Holding

Costs to abide the outcome of the appeal rather than follow the event immediately.

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.