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ELCDismissedNotice of Motion dated 1st October 2019 (Chuka ELC)· [2019] KEELC 1182 (KLR)

Obadiah Muruja Mugendi v Charles Kabiti Japhet & 3 others [2019] KEELC 1182 (KLR)

Environment and Land Court
29 October 2019
940 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause enforcement of a land judgment because the applicant delayed, offered no security, and lied in his sworn statement.

What this practically means

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Executive summary

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The petitioner, Obadiah Muruja Mugendi, moved the Environment and Land Court at Chuka by Notice of Motion dated 1 October 2019 under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A, 6 and 63(c) of the Civil Procedure Act, seeking a stay of execution of the court's judgment of 29 May 2019 and an order maintaining status quo over LR No. Muthambi/Kandungu/1636 pending an intended appeal to the Court of Appeal at Nyeri. He deponed that the 1st respondent was bringing potential buyers to the suit land, which would render his appeal nugatory. When the application came up for hearing on 15 October 2019, only the applicant attended; there was no evidence of service on the respondents. The court found the applicant's sworn claim that the judgment and proceedings were only availed to him on 14 August 2019 to be false, as the record showed the judgment was supplied on 29 May 2019 and the proceedings on 14 June 2019. Applying Order 42 Rule 6(2), the court held there was unreasonable delay, no security for due performance of the decree had been offered, and the notice of appeal filed on 14 October 2019 was out of time under Rule 75 of the Court of Appeal Rules. The application was dismissed with no costs awarded.

Key legal issues

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01

Whether the stay application satisfied Order 42 Rule 6 conditions

Holding

It did not: there was unreasonable delay, no security was offered, and the notice of appeal was filed out of time

Reasoning

Judgment was delivered on 29 May 2019 and the judgment and proceedings were supplied the same day and on 14 June 2019 respectively, yet the applicant deponed they were availed on 14 August 2019, a falsehood. The notice of appeal was filed on 14 October 2019, over four months later, constituting inordinate delay contrary to Rule 75 of the Court of Appeal Rules. No security for due performance of the decree was offered. All Order 42 Rule 6(2) conditions thus failed.

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02

Candour and clean hands in seeking discretionary relief

Holding

The applicant lied on oath about when the judgment and proceedings were availed, disentitling him to discretion

Reasoning

The court's record showed the judgment was supplied on 29 May 2019 and proceedings on 14 June 2019, contradicting the applicant's sworn statement that they were availed on 14 August 2019. The court condemned this as a blatant lie and held that a litigant seeking discretionary orders must come to court with clean hands.

p. 2

Legal principles established

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  • A litigant seeking discretionary orders must come to court with clean hands
  • Stay of execution under Order 42 Rule 6 requires no unreasonable delay, substantial loss, and security for due performance of the decree

Court orders

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  1. 1.The application dated 1st October 2019 is dismissed
  2. 2.No costs are awarded in the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 6 and 63(c)
  • Court of Appeal RulesRule 75
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A, 6 and 63(c) of the Civil Procedure Act

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, "Obadiah Muruja Mugendi v Charles Kabiti Japhet & 3 others [2019] KEELC 1182 (KLR)", Case Analysis (2019). Notice of Motion dated 1st October 2019 (Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1182/eng@2019-10-29

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