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ELCPartially AllowedNotice of motion dated 16th October 2018 arising from an appeal against Runyenjes PMCC No. 82/2015· [2019] KEELC 4023 (KLR)

Michael Nyaga Nthiga v Faith Njoki Wambogo & 3 others [2019] KEELC 4023 (KLR)

High Court of Kenya
28 March 2019
YAY. M. Angima
1,288 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot 'stay' a judgment that simply dismissed your case, but Kenyan courts can still freeze the disputed property to protect your appeal.

What this practically means

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Executive summary

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This was a ruling by the High Court at Embu (Y.M. Angima, J) on a notice of motion dated 16th October 2018 by the Appellant, who had filed an appeal against the judgment of Hon L.K. Mwendwa delivered on 9th August 2018 in Runyenjes PMCC No. 82 of 2015 dismissing his suit for recovery of Title No. Kagaari/Kigaa/3508. The Appellant sought stay of execution of that judgment and an order of inhibition against the suit property pending appeal. The 1st Respondent opposed the application, contending that the trial court's judgment merely dismissed the Appellant's suit, leaving nothing capable of being stayed. The court framed two issues: whether a case for stay of execution had been made out, and whether a case for inhibition had been made out. On the first issue, the court held that since the Appellant's suit was dismissed, there was no positive order capable of execution except possibly costs; following Western College of Arts & Applied Sciences v Oranga, the prayer for stay was misconceived. On the second issue, the court found that the property had been transferred pursuant to a land exchange agreement, and that its alienation pending appeal might render a successful appeal nugatory; invoking Shivabhai Patel v Manibhai Patel, it found sufficient cause to preserve the property. The court declined the prayer for stay but granted an order of inhibition under section 68 of the Land Registration Act, 2012, to run for two years or until the appeal's conclusion, whichever came first, with costs of the application to be costs in the appeal.

Key legal issues

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01

Whether an order for stay of execution can issue where the judgment appealed from merely dismissed the suit

Holding

Stay was refused; a dismissal creates no positive order capable of execution except possibly costs.

Reasoning

The Appellant's suit for recovery of the suit property was dismissed by the trial magistrate. The only order capable of execution was an order for costs. Following Western College of Arts & Applied Sciences v Oranga, the court held there was nothing to stay, while noting the Appellant could pursue other interim relief such as an injunction.

p. 2
02

Whether an order of inhibition should issue to preserve the suit property pending appeal

Holding

Inhibition was granted for two years or until disposal of the appeal, whichever comes first.

Reasoning

The suit property had been transferred by the Appellant to the 1st Respondent pursuant to an agreement for exchange of land. If the property were alienated or disposed of before the appeal concluded, the appeal might be rendered nugatory. Relying on Shivabhai Patel v Manibhai Patel, the court found sufficient cause to grant inhibition under section 68 of the Land Registration Act, 2012.

p. 2

Legal principles established

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  • Where a suit is dismissed with no positive order capable of execution, an order for stay of execution is misconceived, but the aggrieved party may still seek an injunction or other interim order pending appeal.
  • It is the clear duty of the court to preserve property which may be in issue in a dispute to avoid a barren result.

Court orders

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  1. 1.The Appellant's prayer for an order of stay of execution is declined.
  2. 2.The Land Registrar Embu shall register an order of inhibition under section 68 of the Land Registration Act, 2012 against Title No. Kagaari/Kigaa/3508 for a period of two years from the date of the order or until the hearing and conclusion of the appeal, whichever comes first.
  3. 3.Costs of the application shall be costs in the appeal.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Act (Cap 21)Sections 1A and 3A
  • Land Registration Act, 2012Section 68

Cases cited (4)

  • Western College of Arts & Applied Sciences Vs Oranga & Others
    [1976-80] KLR 78
  • Kilindini Warehouses (K) Ltd & Another Vs Omar Saleh Said & Another
    [2014] eKLR
  • Sonalux Limited & Another Vs Barclays Bank of Kenya Ltd & 2 Others
    Nairobi Civil Application No. Nai 219 of 2007
  • Shivabhai Patel Vs Manibhai Patel
    [1959] E.A 907
On appeal from
Principal Magistrate's Court at Runyenjes
PMCC No. 82 of 2015
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A and 3A of the Civil Procedure Act (Cap 21)

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, "Michael Nyaga Nthiga v Faith Njoki Wambogo & 3 others [2019] KEELC 4023 (KLR)", Case Analysis (2019). Notice of motion dated 16th October 2018 arising from an appeal against Runyenjes PMCC No. 82/2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4023/eng@2019-03-28

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