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ELCDismissedCivil Appeal Case No. 107 of 2017· [2019] KEELC 1609 (KLR)

Micheni Kenyatta & another v M’Kea M’Murithi [2019] KEELC 1609 (KLR)

High Court of Kenya
2 October 2019
1,805 words in judgment
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The bottom line

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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

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Executive summary

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The applicants, Micheni B. Kenyatta and Musyoka B. Kithinji, moved the High Court at Chuka by Notice of Motion dated 27th August 2019 seeking stay of execution of the judgment and decree in Meru CMCC No. 183 of 1999 (M'Kea Muriithi vs Micheni Kenyatta), delivered on 27th August 1999 by Senior Principal Magistrate Njeru Ithiga, and in the alternative an order of status quo over L.R. No. Karingani/Ndagani/4696, pending an intended appeal to the Court of Appeal against this court's own judgment of 20th June 2018 dismissing their appeal. The 2nd applicant, who was not a party to the original suit, complained that the decree erroneously affected his registered parcel 4696 and that he was denied a hearing. The respondent opposed through grounds of contention that the court was functus officio regarding the lower court decree, that Order 42 Rule 6 did not permit such a stay in this forum, that there had been inordinate delay of one year and three months since this court's judgment, that no security had been offered, and that the decree had already been executed. The court upheld all the grounds of opposition, rejecting the applicants' explanation that previous advocates were to blame for the delay, and holding that a suit belongs to the litigant. The application was dismissed with costs to the respondent on 2nd October 2019.

Key legal issues

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01

Whether the High Court could entertain an application for stay of the magistrates' court decree pending an intended appeal to the Court of Appeal

Holding

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

Reasoning

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.

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02

Whether the delay of one year and three months in filing the application was excusable

Holding

The delay was inordinate and unexplained; the excuse of blame on previous advocates was rejected

Reasoning

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.

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03

Whether prior execution of the decree rendered the application academic

Holding

The applicants' own averment that the decree had been executed weighed against the application

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.This application is hereby dismissed.
  2. 2.Costs, against the Applicants, are awarded to the Respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(1)(d)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B & 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) & (2)
  • Civil Procedure Rules, 2010Order 51
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

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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, "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.