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ELCDismissedNot stated in judgment (Notice of Motion dated 20.12.2018, arising from Meru Chief Magistrate Civil Case No. 49 of 2013)· [2019] KEELC 3583 (KLR)

Francis Mukunja v M’rungento Mbogori & another [2019] KEELC 3583 (KLR)

Environment and Land Court at Meru
25 April 2019
LMLucy N. Mbugua
458 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 stay execution because the applicant's original suit had already been dismissed — with nothing left to stay, only a speedy appeal could help him.

What this practically means

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Executive summary

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By a notice of motion dated 20.12.2018, the applicant sought stay of execution of the judgment, decree and all consequential orders in Meru Chief Magistrate Civil Case No. 49 of 2013 made on 20.12.2018, pending the hearing of the application inter partes and of his intended appeal. He argued that the ruling of 20.12.2018 was entered against him, that the respondent was threatening execution, and that unless stay was granted he would be rendered homeless, suffer irreparable loss and be condemned unheard, rendering the appeal nugatory. In a supporting affidavit he deponed that the suit property is family land where he and his family have lived since childhood. The 1st respondent opposed the application, deponing that the applicant's suit in the lower court was dismissed on 30th August 2017, that an application for reinstatement was dismissed on 20th December 2018, and that neither he nor the 2nd respondent had filed a counterclaim or obtained eviction orders, so there was nothing to stay. The court perused the record, agreed that the suit had been dismissed and reinstatement efforts had failed, and held that where a suit is dismissed there is no order capable of being stayed. The applicant was told to pursue his appeal with speed. The application dated 20.12.2018 was dismissed with no orders as to costs. Judgment delivered at Meru on 25th April 2019 by L.N. Mbugua, ELC Judge.

Key legal issues

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Whether there is anything capable of being stayed pending appeal

Holding

The application fails because the applicant's suit was dismissed and the application for reinstatement was likewise dismissed, leaving no order or decree to stay

Reasoning

The court examined the record and found the applicant's suit in CMCC No. 49/13 was dismissed on 30.8.2017, and the attempt to reinstate it was dismissed on 20.12.2018. The 1st respondent had filed no counterclaim and no eviction orders had been issued. Since dismissal of a suit leaves no executable decree, there was nothing to stay; the proper course was to prosecute the appeal expeditiously. The application dated 20.12.2018 was therefore dismissed with no orders as to costs.

p. 1

Legal principles established

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  • There can be no stay of execution where the underlying suit has been dismissed and nothing remains to be executed

Court orders

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  1. 1.The application dated 20.12.2018 is dismissed with no orders as to costs
On appeal from
Chief Magistrate's Court at Meru
Meru CMCC No. 49 of 2013
Jurisdiction invoked
Appellate/supervisory jurisdiction of the Environment and Land Court over appeals from the Chief Magistrate's Court (stay of execution pending appeal); specific statutory provision not cited in the judgment

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, "Francis Mukunja v M’rungento Mbogori & another [2019] KEELC 3583 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 20.12.2018, arising from Meru Chief Magistrate Civil Case No. 49 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3583/eng@2019-04-25

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