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ELCAllowedNot stated in judgment (suit commenced by plaint filed 17 December 2015; application dated 18 March 2015/2016)· [2016] KEELC 305 (KLR)

Komo Chege & 6 Others v Joseph Wanjiku Mwangi & 15 Others [2016] KEELC 305 (KLR)

Environment and Land Court
1 April 2016
MSMunyao Sila
1,520 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused an injunction against Nakuru garage owners, but only if they quickly file their appeal and deposit Kshs. 1 Million as security.

What this practically means

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Executive summary

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This was an application by the defendants, under Order 42 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, for a stay of execution of the court's ruling of 9 March 2016, pending an appeal to the Court of Appeal. The underlying suit, commenced by plaint on 17 December 2015, concerns plots in Nakuru County formerly owned by Nakuru Teachers Co-operative Society. The plaintiffs alleged that although the area is residential, the 1st-15th defendants (the 9th and 10th having been withdrawn) had allowed their plots to be used as motor garages without change of user, and also sued the County Government of Nakuru. The court had earlier granted an injunction restraining garage activities after finding a prima facie case with a probability of success. The defendants argued they would suffer substantial loss, that the plots were commercial, and that the balance of convenience favoured maintaining the status quo. The plaintiffs opposed, alleging illegality, non-compliance with the injunction and a pending contempt application, and questioning a share certificate annexed by the applicants. The court found the application was not fatally defective despite mis-citation of provisions, held that stay pending appeal is discretionary, and granted the stay on conditions: filing the appeal within 60 days and depositing security of Kshs. 1 Million in court or a joint interest-earning account within 14 days, failing which the injunction would stand. Costs of the application were reserved to the appeal.

Key legal issues

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01

Defectiveness of the application for mis-citing provisions

Holding

The application was not fatally defective; an error in citing the correct provision occasioned no prejudice to the respondents.

Reasoning

The court held that the substance of the application was clearly one for stay pending appeal. Even if the wrong provisions were cited, no prejudice was caused to the respondents, so the application would not fail on that technical basis.

p. 3
02

Grant of stay pending appeal under Order 42 Rule 6

Holding

Stay pending appeal is discretionary; the court granted the stay but conditioned it on filing the appeal within 60 days and depositing security of Kshs. 1 Million within 14 days.

Reasoning

Applying Order 42 Rule 6(1) and (2), the court found the appeal does not operate as an automatic stay. Exercising its discretion, the court was prepared to grant a stay, but attached conditions - filing of the appeal within 60 days and deposit of security of Kshs. 1 Million - failing which the injunction would stand.

p. 3

Legal principles established

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  • Stay pending appeal is a matter of the court's discretion; an appeal does not operate as an automatic stay of execution of a decree or order.

Court orders

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  1. 1.Stay of execution of the ruling of 9 March 2016 (order of injunction) pending appeal granted
  2. 2.Applicants to file their appeal within 60 days, the proceedings being ready for collection on payment of requisite fees
  3. 3.Applicants to deposit security of Kshs. 1 Million in court or in a joint interest earning account within 14 days
  4. 4.If the above two conditions are not met, the applicants will have to abide by the order of injunction
  5. 5.Costs of the application to be in the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rule 1 and 2
  • Civil Procedure RulesOrder 42 Rule 6 (subrules (1)-(6))
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Order 42 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (stay pending appeal under Order 42 Rule 6)

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, "Komo Chege & 6 Others v Joseph Wanjiku Mwangi & 15 Others [2016] KEELC 305 (KLR)", Case Analysis (2016). Not stated in judgment (suit commenced by plaint filed 17 December 2015; application dated 18 March 2015/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/305/eng@2016-04-01

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