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ELCDismissedNanyuki Land Case No. 31 of 2006 (Stay Application dated 19th September 2017)· [2018] KEELC 2682 (KLR)

Samuel Karobia Muriuki v Benard Ngetha [2018] KEELC 2682 (KLR)

High Court of Kenya at Nyeri
4 July 2018
LWL N WAITHAKA
872 words in judgment
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The bottom line

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The High Court in Nyeri dismissed a landowner's attempt to pause execution of a ruling because no valid appeal existed, and penalised him with costs for re-litigating settled matters.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 19th September 2017 in which the appellant, Samuel Karobia Muriuki, sought a stay of execution of a ruling delivered on 15th August 2017 in Nanyuki Land Case No. 31 of 2006, concerning land parcels Laikipia Nanyuki Marua Blocks 3/1938 and 899, pending hearing of the application and an appeal. The application was supported by the applicant's affidavit and a further affidavit deposing that certified lower court proceedings had not been supplied. The respondent opposed the application as incompetent, frivolous, vexatious and an abuse of court process, contending that the orders had been overtaken by events, that the legal requirements for a stay had not been met, and that the leave granted to appeal out of time had been set aside, leaving no competent appeal pending. Although the application was governed by Order 42 Rule 6 of the Civil Procedure Rules, the court first dealt with the preliminary issue of whether any appeal was pending. Relying on prior decisions in Nyeri HCC No. 27 of 2006 (where the applicant's suit was found res judicata and an abuse of process) and Nyeri ELCA No. 105 of 2009 (where the order allowing the appeal out of time was set aside), the court held that the issues had already been determined by courts of competent jurisdiction and that those decisions had not been appealed or set aside. Holding that no competent appeal was pending before the provincial appeals committee, the court found the application and appeal to be an abuse of the court process and, in the exercise of its discretion under Sections 3A and 79B of the Civil Procedure Act and Order 42 Rule 6, dismissed both the application and the appeal with costs to the respondents. Judgment was delivered at Nyeri on 4th July 2018 by L N Waithaka J.

Key legal issues

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01

Existence of a competent appeal as a precondition to stay of execution

Holding

The leave to appeal out of time granted to the applicant had been set aside by a court of concurrent jurisdiction, so no competent appeal was pending; the stay application could not stand

Reasoning

The respondent showed that the order allowing the applicant to appeal out of time against the Land Disputes Tribunal award had been set aside in Nyeri ELCA No. 105 of 2009, and that related issues had been determined in Nyeri HCC No. 27 of 2006 where the applicant's suit was found res judicata. With no appeal pending before the appeals committee, the stay application had nothing to hinge on.

02

Abuse of court process / res judicata

Holding

The issues raised in the application and appeal had already been heard and determined by courts of competent jurisdiction; re-litigating them was an abuse of process

Reasoning

Previous decisions of courts of concurrent jurisdiction had determined that the orders sought to be stayed had been executed, that the applicant's earlier suit was res judicata and an abuse of process, and that the extension of leave to appeal had been nullified. Those decisions were neither appealed from nor set aside, so the applicant could not re-open them through a stay application.

p. 2

Legal principles established

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  • An application for stay of execution pending appeal cannot lie where there is no competent appeal pending before the relevant appellate body
  • A party aggrieved by determinations of courts of competent jurisdiction must seek review or appeal in those proceedings; re-litigating the same issues amounts to abuse of court process

Court orders

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  1. 1.The application for stay of execution dated 19th September 2017 is dismissed
  2. 2.The appeal is dismissed
  3. 3.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79B
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (1)

  • Nyeri ELCA No. 105 of 2009
On appeal from
Provincial Appeals Committee (Appeals Tribunal)
Jurisdiction invoked
Sections 3A and 79B of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

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, "Samuel Karobia Muriuki v Benard Ngetha [2018] KEELC 2682 (KLR)", Case Analysis (2018). Nanyuki Land Case No. 31 of 2006 (Stay Application dated 19th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2682/eng@2018-07-04

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