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ELCDismissedNot stated in the judgment· [2019] KEELC 3279 (KLR)

Moses Banda Stephen Wafula v Constant Mechumo Muchoe & 6 othersi; Meshack Wafula, David Juma & another (Objectors/Applicants) [2019] KEELC 3279 (KLR)

High Court of Kenya (court not expressly named in the judgment; delivered at Bungoma)
9 May 2019
1,409 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 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

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Executive summary

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This ruling by Boaz N. Olao, Judge, delivered at Bungoma on 9th May 2019, determines a Notice of Motion dated 19th July 2018 by Meshack Wafula, David Juma and Titus Malenya, who described themselves as Objectors/Applicants, against Moses Banda Stephen Wafula, the Claimant/Respondent. The dispute concerned land parcel KIMILILI/SIKHENDU/607, which was arbitrated in 2009 before arbitrator E. W. Ouna Esq.; a consent award signed on 4th April 2015 was filed on 12th January 2016, adopted as an order of the Court by Mukunya J, and a decree issued on 12th October 2017. The Objectors, who were strangers to the arbitration, sought a stay of execution of the decree and an order restraining their eviction, alleging they had bought a portion of the land from Martin Mukhebi Wafula, a beneficiary of the deceased owner's estate, without notice of the proceedings. The Respondent opposed, arguing the application contravened the Arbitration Act's bar on court intervention, that the Objectors were strangers to the proceedings, and that they had committed to vacate the land by a letter dated 24th April 2018, which the 1st Objector later disowned. The court dismissed the application with costs, holding that a stay of execution cannot issue in a vacuum absent a pending appeal, and that an injunction cannot be granted without a pending suit, applying Geoffrey Ndungu Theuri v Law Society of Kenya. The court noted the Objectors' remedy lay in filing a suit against their vendor, who was not a party to the arbitration.

Key legal issues

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01

Whether stay of execution can be granted in the absence of an appeal

Holding

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

Reasoning

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.

p. 2
02

Whether an injunction could issue restraining eviction absent a pending suit

Holding

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

Reasoning

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.

p. 3
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The correct remedy for the Objectors/Applicants

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Objectors/Applicants' Notice of Motion dated 19th July 2018 is dismissed with costs

Authorities

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Legislation

  • Arbitration ActChapter 49 Laws of Kenya
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure ActSection 2

Cases cited (1)

  • GEOFFREY NDUNGU THEURI .V. LAW SOCIETY OF KENYA
    C.A Civil Appeal No 5 of 1985 (1988 eKLR)
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

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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, "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.