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ELCAllowedNotice of Motion dated 13th November 2018 (appeal from Voi SPMCC ELC No. 16 of 2018)· [2019] KEELC 4291 (KLR)

Lilian Mercy Mutua t/a Lilian M Gems v Kasigau Ranching (DA) Co Limited [2019] KEELC 4291 (KLR)

Environment and Land Court
6 March 2019
CYC.K. Yano
1,432 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused a land dispute at Voi because continuing it could make the pending jurisdictional appeal pointless.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determined a Notice of Motion dated 13th November 2018 by the Appellant, Kasigau Ranching (D.A.) Co. Limited, seeking a stay of all further proceedings in Voi SPMCC ELC No. 16 of 2018 (Kasigau Ranching v Lilian Mercy Mutua T/A Lilian M. Gems). The stay was sought pending the Appellant's appeal against a ruling of the subordinate court (E. G. Nderitu, SPM) delivered on 30th October 2018, which overruled a preliminary objection contesting the Chief Magistrate's court's jurisdiction over the Respondent's claim, on grounds including Section 5 of the Civil Procedure Act, Section 13 of the Environment and Land Court Act, various Civil Procedure Rules provisions, constitutional articles and the Mining Act. The Respondent opposed, contending that the suit was essentially about trespass to private land (LR. 12180) and eviction of a trespasser allegedly engaged in unauthorised mining, not about mining rights, and that the appeal would cause no prejudice. The court applied Order 42 Rule 6 and the principles in Butt v Rent Restriction Tribunal and Silverstein v Chesoni, found substantial loss demonstrated (proceedings to conclusion could render the appeal nugatory) and no unreasonable delay, allowed the application, and ordered costs of the application to abide the outcome of the appeal. The judgment does not itself determine the jurisdictional question on the merits.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

The court found that if proceedings continued before the subordinate court, the appeal on jurisdiction could be rendered nugatory

Reasoning

The appellant had raised a preliminary objection on jurisdiction in the subordinate court which was overruled, and had appealed. If the subordinate court proceedings ran to conclusion while the appeal was pending, the appeal would achieve nothing. The court held this demonstrated substantial loss sufficient for a stay under Order 42 Rule 6.

p. 2
02

Whether the application was brought without unreasonable delay

Holding

There was no unreasonable delay; the application was filed soon after the ruling and memorandum of appeal

Reasoning

The ruling appealed against was delivered on 30th October 2018, the memorandum of appeal was lodged on 6th November 2018, and the application was filed on 14th November 2018. The court was satisfied the timelines showed no undue delay under Order 42 Rule 6(2)(a).

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay; stay preserves the status quo to prevent the appeal being rendered nugatory
  • The power to grant or refuse a stay is discretionary and should be exercised so as not to render an appeal nugatory

Court orders

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  1. 1.Stay of any/all further proceedings in Voi SPMCC ELC No. 16 of 2018 pending the outcome of the appeal against the ruling overruling the preliminary objection
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e), 75, 78
  • Civil Procedure ActSection 5
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 4 Rules 1(4), 1(6), 3, 6; Order 2 Rules 10(1), 15(1)(a)
  • Environment and Land Court ActSection 13
  • Mining Actvarious provisions
  • Constitution of Kenyavarious articles

Cases cited (2)

  • Butt -v- Rent Restriction Tribunal
    (1982) KLR 417
  • Silverstein – v- Chesoni
    (2002) 1 KLR 867
On appeal from
Chief Magistrate's Court at Voi
Voi SPMCC ELC No. 16 of 2018
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(e), 75 and 78 of the Civil Procedure Act; Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure 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, "Lilian Mercy Mutua t/a Lilian M Gems v Kasigau Ranching (DA) Co Limited [2019] KEELC 4291 (KLR)", Case Analysis (2019). Notice of Motion dated 13th November 2018 (appeal from Voi SPMCC ELC No. 16 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4291/eng@2019-03-06

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