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ELCAllowedHCCC No. 97/2004 (OS) (Meru) - ruling on notice of motion dated 5th November 2018· [2018] KEELC 371 (KLR)

Iruri v Kirimi & another (Environment and Land Case 61 of 2017) [2018] KEELC 371 (KLR)

Environment and Land Court
7 December 2018
813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In Kenya, merely saying you'll appeal does not stop the winner from executing a land judgment — only a court-ordered stay does.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court determines a notice of motion dated 5th November 2018 by the plaintiff, Ernest M. Mugambi R. Iburi, seeking the lifting of an inhibition order registered against nine parcels of land (Ntima/Igoki/6906 to 6914), being subdivisions of the original suit land Ntima/Igoki/2504. The inhibition had been registered on 25th January 2006 following the respondent's application to set aside an interlocutory judgment obtained in HCCC No. 97/2004 (OS) before the establishment of the ELC. Following judgment in the plaintiff's favour on 31st October 2018, the plaintiff sought to remove the inhibition so as to enjoy the fruits of the judgment. The 2nd respondent opposed, deposing that he had appealed to the Court of Appeal and that lifting the inhibition would render the intended appeal nugatory. The court held that a wish to appeal or a draft notice of appeal cannot operate as a stay of execution; under Order 42 rule 6(1) only a court order for stay can have that effect, and no such application was before the court. The inhibition was intended to last only until hearing and determination of the suit, an event that had occurred. The court allowed the application dated 5th November 2018 as prayed. No costs order is recorded.

Key legal issues

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01

Whether an appeal or draft notice of appeal stays execution

Holding

An appeal or draft notice of appeal does not operate as a stay of execution; under Order 42 rule 6(1) only a court order can stay execution, and no stay application was before the court.

Reasoning

The court relied on Order 42 rule 6(1) of the Civil Procedure Rules, which provides that an appeal does not operate as a stay unless the court so orders. The 2nd respondent only attached a draft notice of appeal and had made no application for stay of the judgment of 31st October 2018. In the absence of such an application, the plaintiff's right to enjoy the fruits of the judgment prevailed.

p. 2
02

Duration and purpose of the inhibition order

Holding

The inhibition order was intended to preserve the suit parcels only until hearing and determination of the suit; that event occurred upon delivery of judgment, so the inhibition must be lifted.

Reasoning

The court found that the inhibition registered on 25th January 2006 following the application to set aside the interlocutory judgment was intended to inhibit transactions on the parcels until the suit was heard and determined. Judgment was delivered on 31st October 2018 in favour of the plaintiff, so the purpose of the inhibition had been fulfilled and it was not meant to last forever.

p. 1

Legal principles established

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  • A notice of appeal or an intention to appeal does not operate as an automatic stay of execution of a decree.
  • A successful litigant is entitled to enjoy the fruits of his judgment once the event securing an interim order has passed.

Court orders

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  1. 1.The application dated 5th November 2018 is allowed as prayed
  2. 2.The inhibition order registered against land parcels Ntima/Igoki/6906, 6907, 6908, 6909, 6910, 6911, 6912, 6913 & 6914 is lifted

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit; Civil Procedure Rules Order 42 rule 6(1)

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, "Iruri v Kirimi & another (Environment and Land Case 61 of 2017) [2018] KEELC 371 (KLR)", Case Analysis (2018). HCCC No. 97/2004 (OS) (Meru) - ruling on notice of motion dated 5th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/371/eng@2018-12-07

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