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ELCDismissedNot stated in the extract· [2014] KEELC 106 (KLR)

Robert Ngaruiya Chutha v Joseph Chege Ndungu [2014] KEELC 106 (KLR)

High Court of Kenya
15 October 2014
PNP. Nyamweya
2,241 words in judgment
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The bottom line

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The High Court dismissed a landowner's attempt to pause and overturn an injunction because he waited five months, proved no real loss, and had already appealed.

What this practically means

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Executive summary

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This ruling by P. Nyamweya J of the High Court at Nairobi, delivered on 15 October 2014, determined two applications by the Defendant in a land dispute over LR No. Ruiru West/Block 1/673. By a Notice of Motion dated 12/4/2013 the Defendant sought a stay of execution and review/setting aside of orders made on 16/11/2012, which had restrained him from entering, trespassing on or constructing on the suit property while simultaneously barring the Plaintiff from demolishing the Defendant's structures thereon. A subsequent Motion dated 7/8/2013 sought vacation-time hearing. The Defendant argued that his appeal (Civil Appeal No. 239 of 2012) would be rendered nugatory and that he would suffer irreparable loss; counsel also invoked Article 40(6) of the Constitution on fraudulently acquired titles. The Plaintiff opposed, noting the orders had already been enforced on 21/1/2013, that no new material existed to justify review, and that pursuing an appeal and review simultaneously abused court process. The court framed two issues: whether execution could be stayed, and whether the orders were reviewable. On stay, it found substantial loss unproven, the 5-month delay unexplained, and no security offered. On review, it held that review is closed once an appeal is lodged against the same order. Both applications were dismissed with costs to be borne by the Defendant.

Key legal issues

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01

Whether the Defendant satisfied the conditions for stay of execution under Order 42 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules

Holding

The application failed: it was filed after an unexplained 5-month delay, substantial loss was not demonstrated, and no security was offered; the 'nugatory appeal' ground was also irrelevant since merits of an intended appeal are for the Court of Appeal.

Reasoning

The court set out the three conditions in Order 42 Rule 6(2): no unreasonable delay, substantial loss, and security. The application of 12/4/2013 sought to stay an order of 16/11/2012, a lapse of 5 months with no explanation, and the Plaintiff had already executed the order. The Defendant merely asserted irreparable loss without stating how it would arise. Since security is only relevant if the first two conditions are met, it need not be considered.

p. 3
02

Whether the orders of 16/11/2012 could be reviewed, varied and/or set aside under section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

Review was unavailable because the Defendant had already preferred an appeal (Civil Appeal No. 239 of 2012) against the very orders sought to be reviewed.

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1 confine review to orders from which no appeal has been preferred. The rationale is that a party on appeal seeks re-examination of the order on its merits, and the court whose order is under appeal cannot interfere further, as that would likely affect the appeal's outcome. The Defendant attached his Notice of Appeal dated and filed 27th November 2012, closing the door on review.

p. 4

Legal principles established

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  • An applicant for stay of execution must demonstrate the substantial loss he will suffer, not merely assert it
  • Once an appeal is preferred against an order, the relief of review of that same order is not available
  • A court seized of a stay application does not inquire into the merits of the intended appeal

Court orders

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  1. 1.Declined to grant the orders sought in the Defendant's Notice of Motion dated 12th April 2013
  2. 2.Defendant to bear the costs of both the Notice of Motion of 12 April 2013 and that of 7th August 2013

Authorities

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Legislation

  • Constitution of KenyaArticle 40(6)
  • Environment and Land Court ActSection 13(7)(g)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 42 Rule 6 (incl. rule 6(2))
  • Civil Procedure RulesOrder 45 (Rule 1; Rule 6(2)(a) as cited by the court)
  • Civil Procedure RulesOrder 22 Rule 25

Cases cited (1)

  • Charles Wahome Gethi v Angela Wairimu Gethi
    Civil Appl. No. 302 of 2007 [2008] eKLR
Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules (Order 42 Rule 6, Order 45, Order 22 Rule 25), the underlying suit concerning LR No. Ruiru West/Block 1/673

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, "Robert Ngaruiya Chutha v Joseph Chege Ndungu [2014] KEELC 106 (KLR)", Case Analysis (2014). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/106/eng@2014-10-15

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