Patrick Malongo Lidovolo v Luice Asang’asa & 2 others [2020] eKLR Case Summary

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
Hon. N.A. Matheka
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Patrick Malongo Lidovolo v Luice Asang’asa & 2 others [2020] eKLR


1. Case Information:
- Name of the Case: Patrick Malongo Lidovolo v. Luice Asang’asa, Acton Musii Khalambukha, Sabeti Khalambukha
- Case Number: ELC Case No. 78 of 2017
- Court: Environment and Land Court at Kakamega
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): Hon. N.A. Matheka
- Country: Kenya

2. Questions Presented:
The court must resolve several legal issues, including:
- Whether the defendants/applicants are entitled to appeal out of time against the judgment delivered on 24th June 2020.
- Whether the defendants/applicants can obtain a stay of execution pending the hearing and determination of the intended appeal.
- Whether the application for extension of time and stay of execution is justified based on the circumstances presented.

3. Facts of the Case:
The plaintiff, Patrick Malongo Lidovolo, initiated the case against the defendants, Luice Asang’asa, Acton Musii Khalambukha, and Sabeti Khalambukha, resulting in a judgment delivered on 24th June 2020. The defendants became aware of the judgment only on 10th August 2020 when a village elder served them with a copy. This delay was attributed to the COVID-19 pandemic, which affected court operations and resulted in the judgment being delivered via email without the defendants' knowledge. The defendants argued that they faced potential prejudice if execution of the judgment proceeded, while the plaintiff contended that the application was defective and lacked merit.

4. Procedural History:
The defendants filed an application on 31st August 2020, seeking:
- Urgent hearing of the application.
- Leave to appeal out of time.
- Stay of execution pending appeal.
- Recognition of their notice of appeal as duly filed.
The plaintiff opposed the application, claiming it was an abuse of process and lacked jurisdiction. The court considered the application, the circumstances surrounding the delay, and the legal principles governing extensions of time and stays of execution.

5. Analysis:
- Rules: The court referenced Section 7 of the Appellate Jurisdiction Act and Order 50 Rule 6 of the Civil Procedure Rules, which allow for extension of time for appeals. The court also cited Order 42 Rule 6 regarding stays of execution, emphasizing that a stay can be granted if substantial loss may result to the applicant and if the application is made without unreasonable delay.
- Case Law: The court cited *Leo Sila Mutiso v. Rose Hellen Wangare Mwangi* and *Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others* to outline the principles for granting extensions of time, which include the length and reason for the delay, the chances of success of the appeal, and potential prejudice to the respondent.
- Application: The court found that the defendants failed to provide a satisfactory explanation for the delay in filing their notice of appeal, and the circumstances surrounding the COVID-19 pandemic did not justify their inaction. The court also determined that the defendants did not demonstrate that they would suffer substantial loss if a stay was not granted. Consequently, the court dismissed most of the application while allowing the firm of M/s. Amasakha & Co. Advocates to come on record for the defendants.

6. Conclusion:
The court ruled that the defendants/applicants were not entitled to an extension of time for their appeal and denied their request for a stay of execution. The ruling underscored the importance of timely action in legal proceedings and the necessity for parties to demonstrate valid reasons for delays in filing appeals.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The Environment and Land Court at Kakamega ruled against the defendants’ application for an extension of time to appeal and a stay of execution, emphasizing the need for timely legal action and the lack of a compelling explanation for the delay. This case highlights the challenges posed by the COVID-19 pandemic on legal proceedings and the courts' commitment to upholding procedural rules. The decision serves as a reminder of the importance of adhering to timelines in legal matters to avoid potential prejudice.

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