Mutiria Karumbai Macwa v James Njagi Makembo & 3 others [2019] KEELC 3667 (KLR)

Environment and Land Court

1 April 2019

PNP. M. Njoroge

722 words in judgment

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The bottom line

A Kenyan landowner lost his bid to pause a court judgment because he skipped the hearing and never filed his appeal notice on time.

What this practically means

Executive summary

The plaintiff/applicant, Mutiria Karumbai Machwa, moved the court by notice of motion dated 12th March seeking certification as urgent, stay of execution pending hearing of the application, and stay of execution pending an appeal he said had been lodged against the judgment in which the parties were ordered to share the parcel of land. He offered to furnish security and complained of a demand notice threatening eviction. The application was supported by his sworn affidavit. The respondents opposed through Grounds of Opposition dated 1st April 2019, contending that the orders in the judgment were not capable of being stayed, that the application was brought under the wrong provisions of law, that no security was offered, that no appeal had been preferred, and that the application was brought after undue delay. On the hearing date the applicant and his advocate were absent. Mr. Mwenda for the 1st defendant asked the court to rely on the grounds of opposition and dismiss the application, a position supported by Mr. Kiongo, Senior State Counsel, for the Attorney General. The court noted that the hearing date had been fixed at Meru at the applicant's own instance by Hon. Lady Justice Mbugua on 19th March 2019, so he had no excuse for absence, and that no Notice of Appeal had been filed within the stipulated time. The application was dismissed with costs to the 1st defendant.

Key legal issues

Whether stay of execution pending appeal should issue

Holding

The application was dismissed because the applicant neither appeared at the inter partes hearing he had himself fixed nor filed a Notice of Appeal within the stipulated time.

Reasoning

The court considered the grounds of opposition and submissions of Mr. Mwenda for the 1st defendant and Mr. Kiongo for the Attorney General. It found no excuse for the applicant's non-attendance since his own counsel fixed the hearing date before Lady Justice Mbugua on 19th March 2019. It further found that no Notice of Appeal had been filed within the stipulated time, undermining the claim that an appeal was lodged and that stay was needed to prevent it being rendered nugatory.

p. 2

Legal principles established

An applicant for stay must demonstrate that an appeal has been lodged, including filing a Notice of Appeal within the stipulated time
A party who fixes a hearing date cannot claim absence excuses non-attendance at the inter partes hearing

Court orders

1.The application dated 12th March is dismissed
2.Costs are awarded to the 1st defendant

Jurisdiction invoked: Inherent jurisdiction of the court to stay execution pending appeal (application expressed to seek stay of execution of the judgment delivered 28th November 2018); specific statutory provision not cited in the judgment

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mutiria Karumbai Macwa v James Njagi Makembo & 3 others [2019] KEELC 3667 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3667/eng@2019-04-01

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