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ELCDismissedEldoret HCCC No. 40 of 1995 (Appeal)· [2016] KEELC 1012 (KLR)

Committee Nyakinyua Jogoo Usalama Farm v Joseph K. Mwangi & 17 others [2016] KEELC 1012 (KLR)

High Court of Kenya
26 February 2016
AOANTONY OMBWAYO
1,889 words in judgment
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The bottom line

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The High Court refused a farming committee's request to pause judgment against it because they waited too long and there was nothing left to pause.

What this practically means

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Executive summary

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The applicants, the Committee Nyakinyua Jogoo Usalama Farm, sought a temporary stay of execution of the judgment and decree in Eldoret HCCC No. 40 of 1995 between the Committee and Joseph K. Mwangi & 17 Others, pending inter partes hearing and final determination of an appeal, together with leave to appeal out of time. The dispute concerns 100 acres at Jogoo area, Uasin Gishu County, allegedly granted by the late President Kenyatta to 32 members of the Nyakinyua Dancers. The respondents, who obtained judgments in both the Land Dispute Tribunal appeal and the High Court directing that they be allocated 2 acres each in the farm, opposed the application, arguing the applicants were indolent, had an advocate on record, and had not explained how the post election violence of 2007/2008 caused the delay. Justice Antony Ombwayo identified the application as one under Order 42 Rule 6 of the Civil Procedure Rules, which requires an application made without unreasonable delay, demonstration of substantial loss and giving of security. He found no good reason for the delay in seeking stay since the decision of 30th September, 2010, and no demonstration that the advocate on record was unaware of the High Court decision dismissing the appeal. He also declined leave to appeal out of time, reasoning that the post election violence occurred in 2007-2008, not 2010, and that the delay from the dismissal on 30.9.2013 to the application on 10.4.2015 was unexplained. Additionally, since the appeal was dismissed with costs, the order sought to be stayed was negative and there was nothing to stay. The application was dismissed with costs.

Key legal issues

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01

Stay of execution under Order 42 Rule 6

Holding

Refused; the applicants gave no good reason for the delay from the decision date of 30th September, 2010, and the decree sought to be stayed was a dismissal, hence negative and incapable of being stayed

Reasoning

The court applied Order 42 Rule 6, requiring application without unreasonable delay, demonstration of substantial loss and security. The applicants did not demonstrate that their advocate on record was unaware of the High Court decision dismissing the appeal, and since the appeal had been dismissed with costs, there was no positive decree to stay.

02

Extension of time to appeal

Holding

Refused; the delay from 30.9.2013 to 10.4.2015 was unexplained

Reasoning

The applicants attributed the delay to the post election violence of 2007/2008, but the decision appealed from was delivered in 2013, well after the violence. The court found no explanation of how the violence caused the delay in appealing in time, and noted the respondents' prejudice and the need to end litigation pending over 25 years.

p. 3

Legal principles established

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  • A negative order of dismissal cannot be stayed because there is nothing to stay
  • Stay of execution under Order 42 Rule 6 requires timeous application, proof of substantial loss and giving of security

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
Land Dispute Tribunal
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction of the High Court)

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, "Committee Nyakinyua Jogoo Usalama Farm v Joseph K. Mwangi & 17 others [2016] KEELC 1012 (KLR)", Case Analysis (2016). Eldoret HCCC No. 40 of 1995 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1012/eng@2016-02-26

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