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ELCDismissedELC Case No. 814 of 2017 (Notice of Motion dated 16th July, 2018)· [2019] KEELC 4387 (KLR)

Musa Onsando Omware v Yussuf Githinji Saleh & 2 others [2019] KEELC 4387 (KLR)

Environment and Land Court
26 February 2019
COChristine Ochieng
1,009 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court refused to pause an adverse possession case because the applicants could defend it first and appeal later.

What this practically means

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Executive summary

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The Defendants in ELC Case No. 814 of 2017, an Originating Summons by Musa Onsando Omare seeking orders of adverse possession over land parcel LR 13977 NGONG TOWN, brought a Notice of Motion dated 16th July 2018 under sections 1A, 1B, 3A and 6 of the Civil Procedure Act and Order 51 rule 1 and Order 42 rule 6 of the Civil Procedure Rules seeking a stay of that suit pending appeal. Their earlier suit, Nairobi HCCC No. 6323 of 1991, seeking eviction, general damages and a permanent injunction, had been dismissed for want of prosecution in June 2016; their fresh suit, Kajiado ELC No. 638 of 2017, was held to be res judicata, and that ruling is the subject of the intended appeal. The Applicants, through the affidavit of Joseph Kamau Mwangi, contended that their suit was dismissed without being heard on res judicata and that the appeal would be rendered nugatory if the adverse possession suit proceeded. The Respondent opposed, arguing the court was functus officio, that the Notice of Appeal dated 5th July 2018 was defective and had lapsed, and that no arguable appeal or prejudice was demonstrated. The court framed a single issue: whether ELC 814 of 2017 should be stayed pending appeal. Holding that the Applicants had not demonstrated prejudice, that they could raise the same averments in defence of the Originating Summons, and that an appeal would remain available after the full hearing, Justice Christine Ochieng dismissed the application with costs on 26th February 2019 at Kajiado.

Key legal issues

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01

Whether ELC Case No. 814 of 2017 should be stayed pending appeal

Holding

The application for stay was unmerited and dismissed with costs

Reasoning

The court noted that the Originating Summons for adverse possession remained pending and that the Defendants had filed their response raising the same averments they had pleaded in their dismissed suit. Since the Defendants could fully defend the suit and still appeal against the final decision if dissatisfied, no prejudice sufficient to warrant a stay was demonstrated. The court therefore found no basis for staying the proceedings.

p. 3
02

Sufficiency of demonstrated prejudice and existence of alternative recourse

Holding

Defence of the Originating Summons is an adequate remedy; appeal remains available after the full hearing

Reasoning

The court reasoned that the prayers the Defendants had sought in the dismissed HCCC No. 6323 of 1991 were the same averments included in their response to the Originating Summons, so nothing prevented them from litigating those issues in the pending suit. If dissatisfied with the eventual decision, they would still have a recourse to appeal, making a stay at the interlocutory stage unnecessary.

p. 3

Legal principles established

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  • A party seeking a stay of proceedings pending appeal must demonstrate the prejudice it will suffer if the suit proceeds to hearing

Court orders

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  1. 1.The Notice of Motion dated 16th July, 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 6
  • Civil Procedure RulesOrder 51 rule 1; Order 42 rule 6
Jurisdiction invoked
Sections 1A, 1B, 3A and 6 of the Civil Procedure Act; Order 51 rule 1 and Order 42 rule 6 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, "Musa Onsando Omware v Yussuf Githinji Saleh & 2 others [2019] KEELC 4387 (KLR)", Case Analysis (2019). ELC Case No. 814 of 2017 (Notice of Motion dated 16th July, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4387/eng@2019-02-26

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