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ELCAllowedOyugis ELC Appeal (Ruling of Hon. P. J. Nandi (S.R.M) delivered 22nd October 2018) - Application dated 18th December 2018· [2019] KEELC 1866 (KLR)

Preskila Atieno Majiwa v Erick George Halwenge & another [2019] KEELC 1866 (KLR)

Environment and Land Court
16 July 2019
GOG. M. A. Ongondo
1,191 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped a lower-court land case because an appeal was underway, protecting the appellant's claim until the appeal is decided.

What this practically means

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Executive summary

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By a Notice of Motion dated 18th December 2018 brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap 21), the appellant, Preskila Atieno Majiwa, sought a stay of proceedings in Oyugis ELC No. 43 of 2018 pending the hearing and determination of her appeal against the Ruling of Hon. P. J. Nandi (S.R.M) delivered at Oyugis Law Courts on 22nd October 2018, in which her counterclaim was struck out with costs to the respondents. She argued that the appeal had high chances of success, was filed without unnecessary delay, and would be rendered nugatory if the trial proceedings continued. The respondents, through Bosire Gichana and Company Advocates, filed a preliminary objection dated 6th February 2019 contending that the court lacked jurisdiction, that no appeal lay, and that the appeal was an abuse of process and incompetent. Both sides filed written submissions. The court considered its discretion under Order 42 Rule 6 and Section 3A of the Civil Procedure Act, and its mandate under Section 13(7)(a) of the Environment and Land Court Act, 2015 to grant interim preservation orders. Guided by Blue Shield Insurance Company Limited v Mahinda, Board of Governors High School Kabarak v Malcolm Bell and Oraro v Mbaja, and by the overriding objective, the court found the application merited and the preliminary objection without merit. The preliminary objection dated 6th February 2019 was dismissed and the application dated 18th December 2018 was allowed in terms of Orders 2 and 3 sought therein, namely stay of proceedings in Oyugis ELC No. 43 of 2018 pending determination of the appeal, with costs of the application in the cause. Judgment was delivered at Migori on 16th July 2019 by G.M.A. Ongondo, Judge.

Key legal issues

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01

Whether stay of proceedings in the trial court should issue pending the hearing and determination of the appeal

Holding

The application was allowed; the court found it merited, guided by the cited authorities and the overriding objective under the Environment and Land Court Act and the Civil Procedure Act.

Reasoning

The court considered its discretion under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and the inherent saving jurisdiction under Section 3A of the Civil Procedure Act, requiring preservation of parties' claims so they may be heard and determined according to law. Relying on Blue Shield Insurance v Mahinda and Board of Governors High School Kabarak v Malcolm Bell, and on its mandate under section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders, the court found the application merited and the preliminary objection without merit.

p. 2
02

The respondents' preliminary objection that the court lacks jurisdiction and the appeal does not lie

Holding

The preliminary objection was dismissed as without merit.

Reasoning

The court noted the respondents' objection that the court lacks jurisdiction, that the appeal does not lie, is an abuse of process and incompetent. After considering the authorities and the statutory mandate to grant interim preservation orders, the court concluded the objection was without merit and dismissed it, allowing the application.

p. 2

Legal principles established

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  • Under section 13(7)(a) of the Environment and Land Court Act, 2015, the Environment and Land Court is mandated to grant interim preservation orders, including stay orders pending appeal.

Court orders

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  1. 1.Dismissal of the respondents' preliminary objection dated 6th February 2019
  2. 2.Allowance of the application dated 18th December 2018 in terms of Orders 2 and 3 sought therein, namely stay of proceedings in Oyugis ELC No. 43 of 2018 pending the hearing and determination of the appeal, and costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Rules, 2010Order 42 Rules 1 and 2
  • Civil Procedure Rules, 2010Order 42 Rules 1, 2, 3
  • Civil Procedure Rules, 2010Order 7 Rule 8
  • Environment and Land Court Practice Directions, 2014Order 33 (a) and (b)
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 75 (1)
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Constitution of Kenya, 2010Article 50 (1)
  • Constitution of Kenya, 2010Article 162 (2)(b)
  • Environment and Land Court Act, 2015 (2012)Section 13 (6)
  • Environment and Land Court Act, 2015 (2012)Section 13(7)(a)
  • Environment and Land Court Act, 2015 (2012)Section 3

Cases cited (7)

  • Meshack Otieno Aida and another =vs= Sharon Atieno Aidah and 7 others
    (2018) eKLR
  • National Bank of Kenya Limited & Another =vs= Geofrey Wahome Muoti
    (2016) KLR
  • Muambi vs. National Social Security Fund
    (2004) eKLR
  • Oraro =vs= Mbaja
    (2005) 1 KLR 142 at 149 and 150
  • David Morton Silverstein –v- Atsango Chesoni
    (2002) eKLR
  • Blue Shield Insurance Company Limited =vs= Mahinda
    (2009) KLR 551 at 561
  • Board of Governors High School, Kabarak and another =vs= Malcom Bell
    Supreme Court of Kenya Application numbers 12 and 13 (2012) eKLR
On appeal from
Oyugis Law Courts (Senior Resident Magistrate's Court)
Oyugis ELC No. 43 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap 21); Section 13(7)(a) of the Environment and Land Court Act, 2015 (2012)

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, "Preskila Atieno Majiwa v Erick George Halwenge & another [2019] KEELC 1866 (KLR)", Case Analysis (2019). Oyugis ELC Appeal (Ruling of Hon. P. J. Nandi (S.R.M) delivered 22nd October 2018) - Application dated 18th December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1866/eng@2019-07-16

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