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ELCAllowedNotice of Motion dated 1st February 2019· [2019] KEELC 2845 (KLR)

Humphrey Mugo Kabute v Susan Gatundo Murage & 4 others [2019] KEELC 2845 (KLR)

Environment and Land Court
14 June 2019
ECE.C. Cherono
444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court lifted a land prohibition order after judgment, ruling that intending to appeal does not stop execution unless you properly apply for a stay.

What this practically means

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Executive summary

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This was a Notice of Motion dated 1st February 2019 brought under Section 3A of the Civil Procedure Act, in which the applicant sought an order lifting the prohibitory order lodged on land parcel No. MUTIRA/KATHARE/273, together with costs. The applicant deponed that the underlying suit had been finalized and judgment entered in her favour, and that the decree could not be enforced unless the prohibitory order lodged during the pendency of the suit was lifted. The respondent, the plaintiff whose suit had been struck out on 6th October 2017, opposed the application on the ground that he had appealed against that decision; typed proceedings had been availed to him and he expected to compile the record of appeal within two weeks, asserting that his appeal had good chances of success and that the court should balance his right to move to a superior court against the applicant's rights. The court, per E.C. Cherono, ELC Judge, held that once a competent court renders a determination, execution inevitably follows unless a stay order is granted, and no stay application had been made or granted under Order 42 Rule 6 of the Civil Procedure Rules. The court further observed that the grounds on which the prohibition orders were issued were unknown and not founded on the applicable rules of civil procedure, and that the respondent could not rely on the pendente lite prohibitory order as a ground for stay pending appeal. The application was allowed as prayed, the prohibitory order was lifted, and the plaintiff/respondent was ordered to bear the costs of the application. Judgment was read, delivered and signed in open court on 14th June 2019.

Key legal issues

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01

Whether the prohibitory order on the suit land should be lifted after judgment

Holding

The application was allowed as prayed; the prohibitory order was lifted.

Reasoning

The suit had been struck out on 6th October 2017 and judgment entered for the applicant. The respondent lodged the prohibitory order pending determination of the suit; once the suit was determined, the decree could not be enforced unless the order was lifted. No stay application had been made and granted under Order 42 Rule 6 CPR, and the grounds for the prohibition were unknown and not founded on civil procedure rules.

02

Whether the respondent's intended appeal justified retaining the prohibition

Holding

It did not; a stay pending appeal requires a proper application under Order 42 Rule 6 CPR.

Reasoning

The respondent opposed lifting the order, arguing he had appealed and needed to preserve the suit land. The court held that execution is the inevitable consequence of judgment unless a stay is granted, and no stay application was made or granted. A pending appeal does not preserve an interim prohibitory order.

p. 2

Legal principles established

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  • Once a competent court renders a determination, execution follows unless a stay order is granted.
  • A prohibitory order lodged during the pendency of a suit cannot serve as a substitute for a stay pending appeal.

Court orders

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  1. 1.The prohibitory order lodged on land parcel No. MUTIRA/KATHARE/273 is lifted
  2. 2.The Plaintiff/Respondent shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rule 6
Jurisdiction invoked
Section 3A Civil Procedure Act (inherent power)

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, "Humphrey Mugo Kabute v Susan Gatundo Murage & 4 others [2019] KEELC 2845 (KLR)", Case Analysis (2019). Notice of Motion dated 1st February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2845/eng@2019-06-14

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