Bethwel Mwangi Githinji & 2 others v Harrison Wachira Wanjohi & another [2019] KEELC 2653 (KLR)

Order 42 rule 6 permits the court appealed from to order stay for sufficient cause, but an appeal does not automatically stay execution. The Respondents argued stay only in a replying affidavit and submissions without any formal or oral application. Relying on Charles Sande v Kenya Cooperative Creameries, the court held a judge has no power to decide an issue not properly raised before him. Accordingly, there was nothing before the court to determine.

Relying on Joseph Odhiambo v Nyakundi Omari and Lamb & Sons Ltd v Rider, the court held that execution is a matter of procedure, the machinery for enforcing judgments, and the court's jurisdiction after judgment is limited to enforcement, without opening a window for relitigating decided matters. The court's powers under the Civil Procedure Act, the Environment and Land Court Act and the Land Registration Act were not ousted.

Section 31 of the Land Registration Act provides that unless filed in the registry or the Registrar dispenses with its production, a certificate of title shall be produced on registration of any dealing. Section 14 empowers the Registrar to summon persons and require production of documents. Title by adverse possession arises by operation of law, is not a transfer, and ordinarily does not require Land Control Board consent; the old title is subsumed by the new title.

Although a successful litigant is entitled to the fruits of his judgment (Machira v East African Standard), the Applicant produced no endorsement of rejection on the registration or booking form, nor other communication from the Land Registrar calling for the old titles. He did not demonstrate any demand on the Respondents for the old titles, and the prayer sought was not included in his Counterclaim. This was not a clear case warranting the court's intervention.