Isaac Mwangi & another v Molyn Credit Limited & 3 others [2019] KEELC 1521 (KLR)
The bottom line
#A Thika court blocked a property buyer from selling or transferring a family home, but only after rejecting the owners' bid to undo the original dismissal outright.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal orders of the trial court could be stayed
The prayer for stay of the dismissal orders was not merited because dismissal orders are not positive and the sale had already occurred
The court reasoned that a dismissed matter yields no positive orders capable of being stayed. The Applicants' challenge to the dismissal lay in the appeal itself. Since the evidence showed the suit property had been sold, there was nothing remaining to stay. The Court of Appeal authority in John Omondi Odhiambo v James Oluoch was applied to that effect.
Whether a temporary injunction should issue against the 3rd Respondent pending appeal
A temporary injunction was granted against the 3rd Respondent only, to preserve the appeal from being rendered nugatory
The court noted the suit property was the Applicants' family home, the appeal against the dismissal of their applications was pending, and some protection was needed so the appeal would not be rendered nugatory. The 4th Respondent was not a party and could not be bound. Questions of lis pendens and the lawfulness of the sale were reserved for the main appeal.
Whether proceedings in the lower court should be stayed pending appeal
Stay of proceedings in the lower court was granted because allowing CMCC No. 820 of 2013 to proceed would render the appeal nugatory
The Applicants challenged the 1st Respondent's exercise of statutory power of sale, and the impugned Ruling had dealt with the sale to the 3rd Respondent. If the lower court suit proceeded to conclusion, the appeal would be an exercise in futility. The court applied the principles in UAP Provincial Insurance v Beckett, Silverstein v Atsango Chesoni and Butt v Rent Restriction Tribunal.
Effect of submissions that addressed the merits of the appeal rather than the application
The court proceeded to determine the application on the pleadings and evidence because submissions are not evidence
The Applicants' written submissions dealt with the merits of the appeal rather than the Notice of Motion dated 4th December 2017. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that submissions cannot take the place of evidence, but that this did not prevent determination of the application based on pleadings and the evidence presented.
Legal principles established
#- Submissions are not evidence and cannot take the place of proof by evidence
- Where a stay is sought against a sale which has already taken place, there is nothing for the court to stay
- The grant of a stay of proceedings or orders is a judicial discretion to be exercised judicially
- An appellate court will not interfere with a trial court's exercise of discretion unless it was clearly wrong (Mbogo v Shah)
- A stay ought to be granted, absent overwhelming hindrance, so that a successful appeal is not rendered nugatory
- An applicant for stay of proceedings must show the appeal is arguable and that refusal would render it futile
Court orders
#- 1.Prayer No. 2 (stay of the dismissal orders) not merited and dismissed entirely
- 2.Temporary injunction granted restraining the 3rd Respondent only, by himself, his agents, servants, employees or anybody claiming under his name from alienating, selling, transferring ownership, disposing off, charging and/or from interfering with the Applicants' peaceful occupation of the suit property Juja/Kalimoni Block 8/462, pending the hearing and determination of the Appeal
- 3.Stay of proceedings at the Lower Court allowed pending the hearing and determination of the Appeal
- 4.Applicants to prosecute the Appeal within 90 days from the date of the Ruling and in default the Stay to automatically lapse
- 5.Prayer No. 6 (service by registered post) disallowed; Applicants to serve the 3rd Respondent personally and file a proper Return of Service
- 6.Costs shall be in the cause
- On appeal from
- Chief Magistrate's Court, Thika
- Thika CMCC No. 820 of 2013
- Jurisdiction invoked
- Appellate/interlocutory jurisdiction of the Environment and Land Court over an appeal from the Chief Magistrate's Court, including jurisdiction to grant injunction pending appeal and stay of proceedings under rule 5(2)(b) as discussed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Mwangi & another v Molyn Credit Limited & 3 others [2019] KEELC 1521 (KLR)", Case Analysis (2019). ELC Appeal (Thika), arising from Thika CMCC No. 820 of 2013; Notice of Motion dated 4th December 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1521/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.