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ELCDismissedELC Case No. 306 of 2017 (application for stay of execution)· [2019] KEELC 1780 (KLR)

Ginson Kiragu Mberia v Stanley Bundi Rimberia & another [2019] KEELC 1780 (KLR)

Environment and Land Court
18 September 2019
3,349 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who lost his case waited three months to ask for a stay of execution, offered no security, and had his application dismissed with costs.

What this practically means

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Executive summary

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The applicant, who lost his land suit (ELC Case No. 306 of 2017 at Chuka) in a judgment delivered by Hon. P. M. Njoroge on 29th May, 2019, applied for certification of urgency, stay of execution of that judgment, and inhibition orders over Land Parcel No. Mwimbi/Murugi/180 pending an intended appeal to the Court of Appeal. He complained that the court took six months to deliver judgment, granted eviction orders never sought by the respondent, and was biased against him, claims he also aired in a petition letter to the Chief Justice and the Judicial Service Commission. The defendants opposed, showing that the three-month period to vacate had lapsed, the plaintiff had voluntarily vacated the suit land leaving a locked empty house and a church structure, the defendants had taken possession, and that a stay would amount to the court reversing its own orders. The application was filed over three months after judgment and was first moved before the Meru ELC Court during recess, which the judge suspected was forum shopping. By the time of hearing, the plaintiff's advocate intimated he no longer wished to pursue the application. The court declined to comment on the bias allegations, holding they belonged to the Court of Appeal, and rejected the delay claims as untrue, noting it delivers judgments within 60 days as required by Order 21 Rule 1. It further observed that no security had been offered as mandatorily required by Order 42 Rule 6(2). The application was dismissed with costs to the defendants, and the Deputy Registrar was directed to forward copies of the ruling to the Chief Justice and the Judicial Service Commission.

Key legal issues

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01

Merits of the stay of execution and inhibition orders

Holding

The application for stay of execution and inhibition orders was dismissed for lack of merit and for want of interest by the applicant.

Reasoning

The application was filed over three months after judgment and after the period to vacate had lapsed; the plaintiff had, uncontroverted, vacated the suit land voluntarily; no security was offered as mandatorily required under Order 42 Rule 6(2). Granting stay would effectively reverse the court's own judgment. The applicant's advocate also intimated the applicant was no longer interested in pursuing the application.

p. 5
02

Allegations of judicial bias and delay against the trial court

Holding

The court declined to canvass the bias allegations, holding they belong to the Court of Appeal, and found the claim of a six-month judgment delay to be false.

Reasoning

The court held that complaints about the judgment's correctness should be raised in the intended appeal; commenting would amount to sitting as an appellate court over its own findings. It rejected as untrue the assertion that judgment had been fixed for 19th December, 2018 and delivered six months later, noting it delivers judgments within 60 days per Order 21 Rule 1. Calumny against judicial officers will not derail them.

p. 5
03

Forum shopping

Holding

The court suspected the delayed application was a contrivance for forum shopping through the Meru ELC Court during the recess.

Reasoning

The application was filed nearly three months after judgment and first moved before the Meru ELC Court during recess, without disclosure of all material facts; the Meru judge referred the parties back to Chuka. The court suspected the delay was a deliberate contrivance to forum shop.

p. 2

Legal principles established

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  • Even where stay of execution is meritorious, the applicant must offer security as mandatorily required by Order 42 Rule 6(2) of the Civil Procedure Rules
  • An application for stay brought after the decree has taken effect and after the applicant has voluntarily complied cannot be granted, as it would amount to the court reversing its own orders

Court orders

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  1. 1.The application for stay of execution and inhibition orders is dismissed for lack of merit and upon intimation of lack of interest to pursue it
  2. 2.Costs of the application awarded to the defendants
  3. 3.The Deputy Registrar is directed to send copies of the Ruling to the Honourable the Chief Justice and to the Judicial Service Commission

Authorities

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Legislation

  • Constitution of KenyaArticle 10(2)(b)
  • Constitution of KenyaArticle 159(2)(a), (b) and (d)
  • Constitution of KenyaArticle 48
  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 21 Rule 1
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Articles 10(2)(b) and 159(2)(a), (b) and (d) of the Constitution of Kenya

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, "Ginson Kiragu Mberia v Stanley Bundi Rimberia & another [2019] KEELC 1780 (KLR)", Case Analysis (2019). ELC Case No. 306 of 2017 (application for stay of execution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1780/eng@2019-09-18

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