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ELCDismissed· [2019] KEELC 2338 (KLR)

Tom Rading Kuyoh v Joshua Nyiera Chairman of Fera Association; Nairobi City County (Interested Party) [2019] KEELC 2338 (KLR)

Environment and Land Court
17 July 2019
BEB M Eboso
1,550 words in judgment
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The bottom line

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The Environment and Land Court dismissed a stay application because the litigant had already lost a similar stay bid in the Court of Appeal and cannot shop for a second chance.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (B M Eboso J) on a notice of motion dated 4/10/2018 in which the petitioner sought a stay of execution of the court's judgment of 18/9/2018, which had dismissed his petition and allowed the respondent's cross-petition concerning structures on the suit property. The applicant argued he had a good and arguable appeal and that demolition of his structures would render the appeal nugatory and cause substantial, irreversible loss; he offered security. The respondent opposed, contending the application was an abuse of process because a similar application had been filed in, and dismissed by, the Court of Appeal for want of prosecution, and that the Order 42 rule 6(2) criteria were unmet. The court framed two issues: abuse of process and satisfaction of the Order 42 rule 6(2) criteria. It held that while a litigant may seek stay in the trial court and then the appellate court, a litigant who loses a stay application in the Court of Appeal cannot retreat to the trial court; the proper remedy is restoration under Rule 56(3) of the Court of Appeal Rules. Granting stay would amount to an impermissible indirect review of the Court of Appeal's order. In the alternative, the court found the applicant had not shown timely service of the notice of appeal (an uncontroverted allegation) nor exhibited evidence of irreparable substantial loss, deference to the Physical Planning Act and special conditions in the title serving the public interest. The application was dismissed for abuse of process and lack of merit.

Key legal issues

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01

Whether the application is an abuse of the process of the court

Holding

It was an abuse of process; the applicant had already sought a similar stay in the Court of Appeal, which dismissed it under Rule 56 for non-attendance and want of prosecution.

Reasoning

The Civil Procedure Rules allow sequential stay applications (trial court first, then appellate court), but not a retreat to the trial court after losing in the appellate court. The proper remedy was restoration of the dismissed Court of Appeal application under Rule 56(3). Granting stay would amount to an indirect review of the Court of Appeal's dismissal, which the trial court has no jurisdiction to do.

p. 2
02

Whether the Order 42 rule 6(2) criteria for stay were satisfied

Holding

They were not: the applicant failed to demonstrate timely service of the notice of appeal and failed to exhibit evidence of irreparable substantial loss.

Reasoning

The allegation that the notice of appeal was served out of time was not controverted. On substantial loss, the applicant produced no evidence of irreparable loss from compliance with the Physical Planning Act and the special conditions in the title; deference to those requirements serves a public interest that outweighs other considerations.

p. 2

Legal principles established

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  • A litigant who seeks stay in the appellate court and loses cannot retreat to the trial court to canvass a similar application; the recourse is restoration of the dismissed application under Rule 56(3) of the Court of Appeal Rules.
  • A trial court has no jurisdiction to review orders of the Court of Appeal.
  • An applicant for stay under Order 42 rule 6(2) must demonstrate substantial loss.

Court orders

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  1. 1.The petitioner's notice of motion dated 4/10/2018 is dismissed for being an abuse of the process of the court and for lack of merit

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Court of Appeal RulesRule 56
  • Court of Appeal RulesRule 56(3)
  • Physical Planning ActNot specified

Cases cited (4)

  • Butt v Rent Restriction Tribunal
    (1979) eKLR
  • Macharia t/a Macharia & Co. Advocates v East African Standard
    Civil Case No. 612 of 1996
  • Macharia t/a Macharia & Co. Advocates v East African Standard
    (No. 2 of 2002) KLR 63
  • Marie Stopes Kenya & 2 Others v Georgina Sheriff
    Civil Appeal No. 172 of 2015
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Tom Rading Kuyoh v Joshua Nyiera Chairman of Fera Association; Nairobi City County (Interested Party) [2019] KEELC 2338 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2338/eng@2019-07-17

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