Moses Banda Stephen Wafula v Constant Mechumo Muchoe & 6 othersi; Meshack Wafula, David Juma & another (Objectors/Applicants) [2019] KEELC 3279 (KLR)
The bottom line
#A Kenyan court refused to stop an eviction because the applicants had neither filed an appeal nor an actual lawsuit protecting their land claim.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution can be granted in the absence of an appeal
Stay of execution was refused; the litigation was complete, the award had been adopted as an order of the Court and a decree issued, and there was no pending appeal on which a stay could pend
The court held that a stay of execution under Order 42 Rule 6(1) of the Civil Procedure Rules operates pending another process such as an appeal. Here the arbitral award was adopted as a court order and a decree issued on 12th October 2017, no appeal was filed, and a stay cannot issue in a vacuum. The prayer was therefore dismissed.
Whether an injunction could issue restraining eviction absent a pending suit
The injunction prayer was refused because no suit was pending; without a suit a party cannot obtain interim relief, following the Court of Appeal in Geoffrey Ndungu Theuri v Law Society of Kenya
Order 40 Rule 1 of the Civil Procedure Rules permits temporary injunctions only 'in any suit'. Relying on Geoffrey Ndungu Theuri v Law Society of Kenya, the court held that a party who has not commenced a suit by plaint, Originating Summons or other prescribed manner cannot obtain injunctive relief however merited. The Objectors had filed no suit.
The correct remedy for the Objectors/Applicants
The application was not one to set aside the arbitral award; if the Objectors purchased land from a non-party to the arbitration, their best option is to file a suit against him
The court emphasised that what was before it was not an application to set aside the arbitral award. The Objectors were not parties to the arbitration, and their claimed vendor, Martin Mukhebi Wafula, was not a party either. Their grievance lies against their vendor in a fresh suit, not in objection to the decree adopting the award.
Legal principles established
#- A stay of execution can only be issued pending another process, such as an appeal, and cannot issue in a vacuum where litigation is complete
- Without a suit as defined in Section 2 of the Civil Procedure Act, a party cannot apply for interim relief such as an injunction
Court orders
#- 1.The Objectors/Applicants' Notice of Motion dated 19th July 2018 is dismissed with costs
- Jurisdiction invoked
- Enforcement and supervisory jurisdiction over arbitral awards filed and adopted as orders of the Court under the Arbitration Act (Cap 49) read with the Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Banda Stephen Wafula v Constant Mechumo Muchoe & 6 othersi; Meshack Wafula, David Juma & another (Objectors/Applicants) [2019] KEELC 3279 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3279/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.