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Court of AppealDismissedCivil Application No. 43 of 2020

Jane Njeri Karongo & Harisson Munga Karongo (Sued as the Legal Representative of the Estate of Rongo Kiuri & another v Hannah Wanjiku Kamau (Suing as the Legal Representative of the Estate of Kamau Kiuri Karongo [2021] KECA 802 (KLR)

Court of Appeal
19 March 2021
RNR.N. NambuyeASAsike-MakhandiaSKS. ole Kantai
953 words in judgment
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The bottom line

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The Court of Appeal refused a stay of a land judgment because the applicants hid that they had already obtained a conditional stay elsewhere.

What this practically means

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Executive summary

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The applicants, legal representatives of two estates, moved the Court of Appeal under rules 5(2)(b) and 47 of the Court of Appeal Rules seeking a stay of execution and/or injunction against the judgment of the Environment and Land Court at Nairobi (S. Okong'o, J.) dated 30th October 2019 in ELC No. 25 of 2018, which ordered them to excise portions of land and transfer them to the respondent, whom the trial court found they held the land in trust for. The applicants asserted an arguable appeal and substantial loss, noting that an elderly occupant depended on the land. The respondent opposed, revealing that the applicants had themselves applied for stay at the trial court, which granted a conditional stay requiring deposit of Ksh.1,000,000 within 60 days from a ruling of 15th July 2020; the applicants failed to meet the condition, sought review instead, and did not disclose these facts to the Court of Appeal. The court, per a single judgment of the full bench of Nambuye, Asike-Makhandia and ole Kantai, JJ.A., held that the applicants came with unclean hands and were forum shopping, and that a court should not permit forum shopping where a valid conditional stay order subsists. The applicants' indolence in not prosecuting the intended appeal was also noted. The Motion was dismissed with costs. The decision reviewed no decision below (it was interlocutory), and its binding contribution is the rule that full disclosure and clean hands are prerequisites to the exercise of the court's discretion on stay applications.

Key legal issues

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Whether the Motion for stay of execution pending appeal could succeed in light of the applicants' non-disclosure and unclean hands

Holding

The Motion was dismissed because the applicants failed to disclose that they had applied for and obtained a conditional stay of execution before the trial court, a condition they did not meet and did not disclose; they were thus in unclean hands and unworthy of the court's discretionary exercise.

Reasoning

The applicants sought a stay from the Court of Appeal while simultaneously seeking and obtaining a conditional stay before the trial court, without disclosing either the application or the condition of depositing Ksh.1,000,000 within 60 days. The respondent disclosed these facts and the applicants had no answer. The court treated the non-disclosure as unclean hands and as forum shopping, disqualifying them from discretionary relief, without needing to assess the arguability of the intended appeal.

p. 2

Legal principles established

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  • A party seeking discretionary relief must make full and frank disclosure of material facts, including any parallel proceedings or orders obtained; a litigant who withholds such facts comes to court with unclean hands and does not deserve the court's discretion.
  • Forum shopping is not permitted by the courts, particularly where there exists a valid court order granting conditional stay of execution pending appeal.

Court orders

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  1. 1.The Motion is dismissed
  2. 2.The applicants shall pay the costs of the Motion
On appeal from
Environment and Land Court of Kenya at Nairobi
ELC No. 25 of 2018
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Njeri Karongo & Harisson Munga Karongo (Sued as the Legal Representative of the Estate of Rongo Kiuri & another v Hannah Wanjiku Kamau (Suing as the Legal Representative of the Estate of Kamau Kiuri Karongo [2021] KECA 802 (KLR)", Case Analysis (2021). Civil Application No. 43 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/802/eng@2021-03-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.