Betha Ndumba M’Twaruchiu v Wachira Wambugu (Environment & Land Case 63 of 2000) [2019] KEELC 3698 (KLR)

The respondent argued that once a notice of appeal is lodged the High Court is ousted and only the Court of Appeal may grant stay under rule 5(2). The court rejected this, holding that rule 5(2) applies only to applications made in the Court of Appeal itself, and that the operative provision for a stay in the High Court is Order 42 Rule 6(2), which requires substantial loss, absence of unreasonable delay and security. The court relied on Magnate Ventures to draw the distinction between the two regimes.

The preliminary objection contended the application was incompetent for disregarding Order 9 rule 9. The court found on the record that a consent had been filed on 20.1.2019 pursuant to the rules, and therefore the application was not defeated. This ground was disposed of as a factual finding rather than a statement of principle.

The applicant argued the appeal was arguable and would be rendered nugatory, and offered security. The court held these are Court of Appeal criteria; the High Court cannot assess arguability of an appeal from its own judgment. The application did not reference Order 42 rule 6, the applicable law. The claim of irreparable harm was negatived by the fact that the judgment only required removal of a fence and did not render the applicant homeless.