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ELCDismissedNot stated in the judgment (application dated 26th March 2019)· [2019] KEELC 2582 (KLR)

Vincent Milimu Ashiono v Geoffrey Ashiono Luyundi [2019] KEELC 2582 (KLR)

High Court of Kenya (implied; the court refers to 'the trial judge' and to an intended appeal 'to the Court of Appeal at Kisumu')
3 July 2019
NMN. A. Matheka
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega dismissed Vincent Milimu Ashiono's bid to block a land sale pending appeal because he failed to prove the legal requirements for a stay.

What this practically means

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Executive summary

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The plaintiff/applicant, Vincent Milimu Ashiono, brought an application dated 26th March 2019 under sections 1A, 3A and 63(e) of the Civil Procedure Act and Order XLI rule 4 of the Civil Procedure Rules, seeking interim and substantive injunctions restraining the defendant from selling, alienating, transferring, disposing of, charging or dealing with title No. KAKAMEGA/SHIVAKALA/799 pending the hearing and determination of an intended appeal against the court's judgment and decree of 27th February 2019. He asserted that a notice of appeal had been lodged, that the appeal (later stated as Court of Appeal Appeal No. 43 of 2019, Kisumu) was arguable, and that alienation would render its success nugatory and cause irreparable loss to the deceased's estate and beneficiaries. The respondent opposed the application as incompetent, vexatious and unmeritorious, maintaining that the suit land had been transferred to him by his father Alphonse Ashiono Limisi during his lifetime and did not form part of the estate, and that no petition of appeal had been filed. The court restated the settled principles under Order 42 rule 6 - substantial loss, absence of unreasonable delay, and security - together with the twin requirements that an intended appeal be arguable and that refusal not render it nugatory, citing Reliance Bank, Chris Munga N. Bichange, Mohamed Salim and Carter & Sons. It further held that, having by consent on 11th May 2017 agreed to proceed with the matter, the applicant was estopped from challenging the jurisdiction of the judge before whom it was part-heard. Finding that the applicant had not established sufficient cause, the court dismissed the application with costs on 3rd July 2019.

Key legal issues

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01

Conditions for stay of execution/injunction pending appeal

Holding

The applicant failed to satisfy the settled conditions: substantial loss, no unreasonable delay, security, and the twin tests of an arguable appeal and an appeal not rendered nugatory

Reasoning

The court restated Order 42 rule 6(1) and rule 6(2) requirements and the Court of Appeal authorities requiring both an arguable appeal and that refusal would render the appeal nugatory. Although the applicant asserted the appeal had overwhelming chances of success, no appeal had been filed, and no substantial loss, delay or security was demonstrated. The court found sufficient cause was not established and dismissed the application.

p. 2
02

Challenge to jurisdiction of the court that heard the suit

Holding

The jurisdictional objection was barred by estoppel because counsel for both parties had, by consent on 11th May 2017, agreed to proceed with the matter from where it had reached

Reasoning

The applicant argued the matter was part-heard before Justice Chacha Mwita who allegedly lacked jurisdiction. On perusal of the record, counsel had by consent on 11th May 2017 agreed to continue the matter, so the objection could not be sustained.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must establish substantial loss, that the application was made without unreasonable delay, and furnish security
  • Both limbs of the stay test - arguable appeal and appeal not rendered nugatory - must be demonstrated
  • A party who by consent elected to proceed with the matter before a particular court is estopped from challenging that court's jurisdiction

Court orders

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  1. 1.The application dated 26th March 2019 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder XLI rule 4
  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery Vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
Jurisdiction invoked
Sections 1A, 3A and 63(e) of the Civil Procedure Act and Order XLI rule 4 (stay pending appeal) of the Civil Procedure Rules

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, "Vincent Milimu Ashiono v Geoffrey Ashiono Luyundi [2019] KEELC 2582 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 26th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2582/eng@2019-07-03

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