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ELCStruck OutNot stated in judgment (Notice of motion dated 14th August 2020)· [2020] KEELC 74 (KLR)
Peter Masakwi Mogori (Suing as the Personal Representative of the Estate of Paulo Wangkio alias Paul Wankio Getari-Deceased) v Christopher Nyamohanga & 2 others [2020] KEELC 74 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan land court struck out a fresh stay application because it had already granted one at judgment and the appeal now sits in the Court of Appeal.
What this practically means
#Executive summary
#The 1st defendant, Christopher Nyamohanga, through Mbugwa, Atudo and Macharia Advocates, moved the Environment and Land Court at Migori by a Notice of motion dated 14th August 2020 under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules and sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act, seeking stay of execution of the court's judgment delivered on 15th July 2020, both pending the hearing of the application and pending Civil Application No. 105 of 2020 before the Court of Appeal at Kisumu. He relied on grounds on the face of the application, a supporting affidavit and submissions citing Butt v Rent Restriction Tribunal, Prilscot Company Ltd v Monica Heho and Silverstein v Chesoni. The respondents filed neither a response nor submissions. The court raised the question of its own jurisdiction. It noted that at the delivery of judgment on 15th July 2020 it had already granted a stay of thirty days, and that the applicant had since filed Civil Appeal No. 105 of 2020 in the Court of Appeal at Kisumu seeking the same orders. Applying the definition of functus officio in Black's Law Dictionary and the jurisdictional principles in Owners of Motor Vessel 'Lilian S' v Caltex Oil, Republic v Karisa Chengo and Macfoy v United Africa Company, the court held it was functus officio and devoid of jurisdiction, the Court of Appeal being seized of the matter. The application was struck out, with costs to abide the outcome of the appeal.
Key legal issues
#01
Jurisdiction of the ELC to grant stay of execution after judgment and after filing of an appeal
Holding
The court is functus officio and devoid of jurisdiction; the Court of Appeal is seized of the matter
Reasoning
Having granted a 30-day stay at the delivery of judgment on 15th July 2020 and the applicant having filed Civil Appeal No. 105 of 2020 before the Court of Appeal at Kisumu, the court's functions were fully accomplished. Relying on the definition of functus officio and the principle that jurisdiction is everything and that decisions made without jurisdiction are void, the court held it could not entertain the fresh stay application.
p. 2
Legal principles established
#- A court becomes functus officio once it has fully accomplished its functions, including granting a stay pending appeal, and loses competence over further applications on the same matter once an appeal is filed
- Lack of jurisdiction renders a court's decisions void
Court orders
#- 1.The Notice of motion dated 14th August 2020 and filed on 17th August 2020 by the 1st defendant/applicant is struck out
- 2.Costs to abide the outcome of Civil Appeal No. 105 of 2020 pending before the Court of Appeal at Kisumu
- Jurisdiction invoked
- Environment and Land Court Act, 2015 (Sections 3 and 19); Civil Procedure Act section 3A; Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010 (cited for electronic delivery of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Masakwi Mogori (Suing as the Personal Representative of the Estate of Paulo Wangkio alias Paul Wankio Getari-Deceased) v Christopher Nyamohanga & 2 others [2020] KEELC 74 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of motion dated 14th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/74/eng@2020-08-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.