Charles Kimaita Mwithimbu & another v Edward Mutua M’mwithiga [2019] KEELC 4646 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal should be granted
Refused - the application was unmerited.
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.
Whether the inhibition on L.R NTIMA/NTAKIRA/1864 and NTIMA/NTAKIRA/1165 should be removed
Allowed - the inhibition was to be lifted forthwith.
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.
Legal principles established
#- 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
#- 1.Plaintiff's application dated 24.10.2018 is dismissed with costs to defendant
- 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
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules; Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.