Ginson Kiragu Mberia v Stanley Bundi Rimberia & another [2019] KEELC 1780 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Merits of the stay of execution and inhibition orders
The application for stay of execution and inhibition orders was dismissed for lack of merit and for want of interest by the applicant.
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.
Allegations of judicial bias and delay against the trial court
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.
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.
Forum shopping
The court suspected the delayed application was a contrivance for forum shopping through the Meru ELC Court during the recess.
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.
Legal principles established
#- 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
#- 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.Costs of the application awarded to the defendants
- 3.The Deputy Registrar is directed to send copies of the Ruling to the Honourable the Chief Justice and to the Judicial Service Commission
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.