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ELCPartially AllowedNot stated in judgment (Suit in which judgment was delivered by Kemei J on 22/9/2017)· [2018] KEELC 2779 (KLR)

Edward Njuguna Kangethe v Joel Kiema Mutinda & 2 others [2018] KEELC 2779 (KLR)

Environment and Land Court

28 June 2018

BEB M Eboso

1,453 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court refused to review its own judgment because the losing party had already appealed, but granted a 12-month stay on strict payment conditions.

What this practically means

Executive summary

This ruling by B M Eboso J of the Environment and Land Court at Nairobi, dated 28 June 2018, determined a Notice of Motion dated 27 September 2017 in which the 1st and 2nd defendants sought review of, and stay of execution of, the judgment of Kemei J delivered on 22 September 2017. That judgment had ordered specific performance of a sale agreement for L R No 12948/266 (Mountain View, House No 81, Nairobi), delivery of completion documents, a permanent injunction restraining dealing with the property, dismissal of the claim for Kshs 80,000 monthly rental loss, dismissal of the counterclaim, and costs against the 1st and 2nd defendants. The applicants argued they intended to appeal, that the property was their matrimonial home, that the balance purchase price was held in a collapsed bank, and that there was a mistake apparent on the record regarding costs. The plaintiff opposed, noting he had paid Kshs 16,000,000 in full while the defendants continued occupying the property without paying mesne profits, and urged a monthly deposit of Kshs 120,000 as a condition of any stay. On review, the court held that having elected to appeal, the applicants were divested of the court's review jurisdiction; the plea for review failed. On stay, the court applied Order 42 rule 6 and granted a conditional stay of execution for twelve months, conditioned on the defendants depositing Kshs 120,000 monthly in court, with the stay lapsing automatically after twelve months unless extended by the Court of Appeal. Costs were made costs in the cause.

Key legal issues

Whether the court retained jurisdiction to review its own judgment after the applicants filed an appeal

Holding

The court was divested of jurisdiction to review the judgment once the applicants elected to appeal

Reasoning

Order 45 rule 1 permits review of a decree or order from which no appeal has been preferred. The applicants stated they had elected to appeal against the judgment of Kemei J and had indeed exercised that right. Since the appeal option had been pursued, the statutory precondition for review was not met and the plea for review failed without further analysis.

p. 2

Whether the applicants met the criteria for a stay of execution pending appeal

Holding

A conditional stay limited to twelve months was granted, conditioned on monthly deposits of Kshs 120,000

Reasoning

The court applied Order 42 rule 6(1) and (2): substantial loss, no unreasonable delay, and security for due performance, plus an arguable appeal not rendered nugatory. Balancing the applicants' occupation of the property as a matrimonial home against the respondent's claim of lost mesne profits, the court granted a time-limited conditional stay with monthly deposits as security.

p. 2

Legal principles established

Jurisdiction to grant a review of a judgment is lost where the aggrieved party has elected to pursue an appeal against that judgment
An applicant for stay pending appeal must show substantial loss, absence of unreasonable delay, security for due performance of the decree, and that the intended appeal is arguable and would not be rendered nugatory

Court orders

1.Conditional stay of execution of the decree for a period of twelve (12) months during which the 1st and 2nd defendants are expected to prosecute their appeal in the Court of Appeal
2.The 1st and 2nd defendants shall deposit in court a monthly sum of Kshs 120,000 payable on the 5th of every month effective from the date of the ruling; in default of remittance in any single month, the stay order shall stand vacated
3.Unless expressly ordered by the Court of Appeal, the stay order shall automatically lapse upon expiry of twelve (12) months from the date of the ruling
4.Costs shall be in the cause
5.Plea for review dismissed (this court divested of jurisdiction having elected to appeal)

Authorities

Legislation

Civil Procedure RulesOrder 45 rules 1 and 2
Civil Procedure RulesOrder 42 rule 6(1) and (2)

Jurisdiction invoked: Order 45 rules 1 and 2 and Order 42 rule 6(1) and (2) of the Civil Procedure Rules (review of own judgment and stay pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Edward Njuguna Kangethe v Joel Kiema Mutinda & 2 others [2018] KEELC 2779 (KLR)", Case Analysis (2018). Not stated in judgment (Suit in which judgment was delivered by Kemei J on 22/9/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2779/eng@2018-06-28

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