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ELCPartially Allowed· [2019] KEELC 4646 (KLR)

Charles Kimaita Mwithimbu & another v Edward Mutua M’mwithiga [2019] KEELC 4646 (KLR)

Environment and Land Court
13 February 2019
798 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court lifted a six-year-old property blockade and refused a stay, warning that decrees must be executed within reasonable time.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Meru (Mbugua, ELC Judge) dealt with two competing applications in a concluded matter. The underlying suit had been dismissed by judgment delivered on 25.10.2012, and the plaintiffs' application for review was dismissed on 21.7.2016. The defendant's application dated 5.10.2018 sought removal of the inhibition lodged on parcels L.R NTIMA/NTAKIRA/1864 and NTIMA/NTAKIRA/1165, which had been registered on 12.11.2010 pending hearing and determination of the suit; no response was filed. The plaintiffs' application dated 24.10.2018 sought stay of execution pending taxation of the bill of costs and pending appeal, citing a notice of appeal and an alleged application for leave to appeal out of time. The court framed two issues: whether stay of execution should be granted and whether the inhibition should be removed. Applying Order 42 rule 6 of the Civil Procedure Rules and Article 159(2)(b) of the Constitution, the court held that six years after judgment no appeal had been filed and even the alleged application for leave to appeal out of time could not be located. It held it unjust to seek a stay at that stage and noted that decrees must be executed within a reasonable time. On the inhibition, the court found that since the suit had been heard and determined in 2012, the inhibition could not remain in force. The plaintiffs' application was dismissed with costs to the defendant, while the defendant's application was allowed with no orders as to costs and the inhibitions were ordered lifted forthwith.

Key legal issues

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01

Whether stay of execution pending appeal should be granted

Holding

Refused - the application was unmerited.

Reasoning

The court exercised its discretion under Order 42 rule 6, balancing the interests of the parties. Judgment had been delivered in October 2012 and six years later no appeal had been filed. The alleged application for leave to appeal out of time referred to as annexure C.K.M.I. was not on record. The court invoked Article 159(2)(b) on delay of justice and held that decrees must be executed within a reasonable time.

p. 2
02

Whether the inhibition on L.R NTIMA/NTAKIRA/1864 and NTIMA/NTAKIRA/1165 should be removed

Holding

Allowed - the inhibition was to be lifted forthwith.

Reasoning

The inhibition had been granted on 12.11.2010 pending hearing and determination of the suit or further orders. The suit was heard and determined in 2012, so the condition for the inhibition's continuation had been satisfied and the inhibition should no longer be in force. The defendant's application was unopposed, no response having been filed.

p. 2

Legal principles established

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  • Under Order 42 rule 6, an appeal does not operate as a stay of execution; the court appealed from may order a stay only for sufficient cause.
  • A lawful judgment may become stale through operation of statutes, hence court decrees should be executed within a reasonable time.
  • An inhibition granted pending hearing and determination of a suit lapses once the suit is heard and determined.

Court orders

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  1. 1.Plaintiff's application dated 24.10.2018 is dismissed with costs to defendant
  2. 2.Defendant's application dated 5.10.2018 is allowed with no orders as to costs; the inhibition lodged in parcels NTIMA/NTAKIRA/1864 and NTIMA/NTAKIRA/1165 is to be lifted forthwith

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (1)

  • Selestica Limited vs Gold Rock Development Ltd
    HCC Appeal No. 48/15 NBI
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Article 159(2)(b) of the Constitution

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, "Charles Kimaita Mwithimbu & another v Edward Mutua M’mwithiga [2019] KEELC 4646 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4646/eng@2019-02-13

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