Chembe Katana Changi v Ministry For Lands & Settlment & 4 others [2014] KEELC 181 (KLR)
The bottom line
#A Kenyan trial court refused to stop a land judgment taking effect, confirming that once a case is decided, litigants must urgently seek protection from the Court of Appeal, not the trial court.
What this practically means
#Executive summary
#Key legal issues
#Functus officio
Having dismissed the plaintiff's suit on 2nd April 2013, the court was functus officio and could only deal with the matter on review under Order 45 or on an application for stay under Order 42 Rule 6.
The court held that a trial court which revisits issues it has already determined would be sitting on its own appeal, which is improper. The only occasions a trial court may deal with a determined matter are during execution, on review under Order 45, or on an application for stay of execution pending appeal under Order 42 Rule 6. No provision permits an application for injunction pending appeal in the trial court.
Injunction pending appeal in the trial court
The trial court lacks power to grant an injunction pending appeal; only the Court of Appeal may do so under Rule 5(2)(b).
After judgment there is no pending suit, so an applicant cannot demonstrate a prima facie case with prospects of success. The Madhupaper case involved an application, not a suit, and did not assist. The Court of Appeal can assess whether an appeal may be rendered nugatory; the trial court, being functus officio, has no such parameters and cannot make such pronouncements.
Stay of execution under Order 42 Rule 6
Stay was refused: the judgment merely dismissed the suit and gave no directions, and the application was filed eleven months after judgment without explanation.
The court reasoned that a judgment dismissing a suit restores the parties to their pre-suit position; the 1st Defendant implementing the adjudication decision is not attributable to any direction in the judgment, so staying it is inconsequential. Further, the eleven-month unexplained delay was inordinate and unreasonable, and no security for due performance was offered.
Legal principles established
#- Once a trial court decides a suit on merit it becomes functus officio and cannot revisit the issues ventilated in the trial
- A trial court has no jurisdiction to grant an injunction pending appeal; such relief lies only with the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules
- An application for stay of execution must be filed without unreasonable delay and the applicant must show substantial loss
Court orders
#- 1.Dismissal of the Plaintiff's Application dated 13th March 2014 with costs
- Jurisdiction invoked
- Civil Procedure Rules Order 45 and Order 42 Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Chembe Katana Changi v Ministry For Lands & Settlment & 4 others [2014] KEELC 181 (KLR)", Case Analysis (2014). Malindi ELC Case (Judgment delivered 2nd April 2013, Application dated 13th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/181/eng@2014-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.