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ELCDismissed· [2017] KEELC 709 (KLR)

M’arichia Mwithiga Kirigia v Romano Muthengi Nduyo & 2 others [2017] KEELC 709 (KLR)

Not expressly stated in the judgment (delivered in open court at Chuka)
19 December 2017
PNP. M. Njoroge
600 words in judgment
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The bottom line

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A Kenyan court dismissed a last-minute bid to stop delivery of its judgment, ruling such applications are unprecedented, speculative, and pointless once judgment is delivered.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 18th December, 2017 (misdated 18.12.2018 in the judgment), filed on the afternoon before judgment was due, invoking sections 1A, 1B and 63(e) of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules. The 1st and 2nd defendants sought certification of urgency, a stay of delivery of judgment slated for 19th December, 2017, and an order reopening the case to allow them to cross-examine the plaintiff and his witnesses and to adduce their own evidence. They argued they had missed the hearing due to a communication breakdown with their advocates, that the pleadings introduced land parcels 1322 and 1198 beyond the consent relating to parcel 1477 in Irunduni Adjudication Section, and that parcel 1322 belonged to a deceased person, Kathenya Kathaka, who had no grant of letters of administration. The court held that Order 50 Rule 1 was irrelevant, as it merely defines a calendar month. By the time the application was called out, judgment had already been delivered, rendering the application overtaken by events. The judge described the application as sui generis, noting he had never encountered an application to stop delivery of a court's own judgment, and held he would have dismissed it in any event as speculative and anticipatory of the judgment's direction. The court also criticised the defendants' advocate for filing at the last minute and for failing to appear to prosecute the application. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether an application to stay delivery of judgment could be entertained

Holding

The application was dismissed as overtaken by events, and the court observed it was of an unprecedented nature and would in any event have been dismissed as speculative.

Reasoning

Judgment had already been delivered before the application was called out, so the principal relief was moot. The court further noted that the application sought to stop a court from delivering its own judgment, something it had never encountered, and that it was speculative in anticipating the direction of the judgment. The advocate's last-minute filing and failure to prosecute the application weighed against any indulgence.

p. 2
02

Relevance of Order 50 Rule 1 of the Civil Procedure Rules to the application

Holding

Order 50 Rule 1 was held to have no relevance, as it merely defines a calendar month.

Reasoning

The application had purported to be predicated on Order 50 Rule 1 of the Civil Procedure Rules, but the court pointed out that this provision merely explains what is meant by a calendar month and could not found the relief sought. This finding went to the foundation of the application, compounding its defects alongside the lateness of filing and the failure of the defendants' advocate to appear and prosecute it.

p. 2

Legal principles established

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  • A court will not entertain a speculative application seeking to stop the delivery of its own judgment or anticipating the direction the judgment would take.
  • An application rendered futile by subsequent events (overtaken by events) must fail.

Court orders

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  1. 1.The application dated 18th December, 2017 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 63(e)
  • Civil Procedure RulesOrder 50 Rule 1
Jurisdiction invoked
Sections 1A, 1B and 63(e) of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules (as invoked by the application)

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, "M’arichia Mwithiga Kirigia v Romano Muthengi Nduyo & 2 others [2017] KEELC 709 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/709/eng@2017-12-19

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