Micheni Kenyatta & another v M’Kea M’Murithi [2019] KEELC 1609 (KLR)
The bottom line
#The High Court at Chuka dismissed a late stay application because it lacked jurisdiction, the applicants delayed over a year, and the decree had already been executed.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court could entertain an application for stay of the magistrates' court decree pending an intended appeal to the Court of Appeal
The court lacked jurisdiction; Order 42 Rule 6 contemplates stay by the court from which the appeal emanates or the court to which the appeal is preferred, and this court was functus officio in respect of the lower court's judgment and decree
The respondent argued, and the court accepted, that Order 42 Rule 6 envisages stay applications in only two courts: the court from which the appeal emanated and the court to which the appeal is preferred. The intended appeal here was against this court's own decision of 20th June 2018, yet the applicants sought stay of the magistrates' court decree. The court held the correct forums were the Court of Appeal or the magistrate's court, and that this court was functus officio regarding the lower court decree.
Whether the delay of one year and three months in filing the application was excusable
The delay was inordinate and unexplained; the excuse of blame on previous advocates was rejected
The application was filed on 27th August 2019, more than a year after the court's judgment of 20th June 2018. Counsel blamed the applicants' former advocates, but the court rejected this as a hackneyed excuse, holding that a suit belongs to the litigant who must prosecute it diligently and timeously, and that the applicants had not satisfactorily explained the delay, noting all litigants were represented when judgment was delivered.
Whether prior execution of the decree rendered the application academic
The applicants' own averment that the decree had been executed weighed against the application
At paragraph 13 of the supporting affidavit the applicants deponed that the respondent had executed the decree. The respondent submitted this rendered the exercise pyrrhic and academic. The court took this into account in dismissing the application, alongside upholding the other grounds of opposition.
Legal principles established
#- A suit belongs to the litigant, who bears responsibility for its diligent and timeous prosecution, and delay by previous advocates is no excuse
- A court hearing an appeal cannot grant stay of the subordinate court's decree where the intended appeal lies against the appellate court's own decision; such stay is for the Court of Appeal or the court from which the appeal emanated
Court orders
#- 1.This application is hereby dismissed.
- 2.Costs, against the Applicants, are awarded to the Respondent.
- On appeal from
- Chief Magistrate's Court, Meru
- Meru CMCC No. 183 of 1999: M'Kea Muriithi vs Micheni Kenyatta
- Jurisdiction invoked
- Articles 50 and 159(1)(d) of the Constitution; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 42 Rule 6 & Order 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Micheni Kenyatta & another v M’Kea M’Murithi [2019] KEELC 1609 (KLR)", Case Analysis (2019). Civil Appeal Case No. 107 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1609/eng@2019-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.