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ELCDismissedNotice of Motion dated 30th November, 2020 (stay of execution pending intended appeal from judgment of 17.11.2020)· [2020] KEELC 181 (KLR)

Morris Kiruja Mpungu & another v Margret Ngiri Muchiri & another [2020] KEELC 181 (KLR)

Environment and Land Court of Kenya
16 December 2020
PNP. M. Njoroge
1,638 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed applicants' stay of execution bid after they skipped the hearing, showing attendance and meeting security conditions are essential.

What this practically means

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Executive summary

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This document reproduces two rulings of the Environment and Land Court at Chuka (P. M. Njoroge, J) arising from a Notice of Motion dated 30th November, 2020 in which Morris Kiruja Mpungu and Genesio Kiraithe Mpungu sought stay of execution of the judgment and decree of 17th November, 2020, by which their suit claiming 2.80 acres comprised in Land Reference Number Muthambi/Erega/204 was dismissed with costs. The applicants, who had occupied and developed the land for 46 years, stated that they had filed a Notice of Appeal and requested typed proceedings, and that the respondents had served a demand letter threatening eviction within 14 days. Invoking Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, they sought permanent or temporary stay pending the intended appeal, offering security. On 2nd December, 2020, sitting exparte, the court denied the prayer for permanent stay but, in the greater interest of justice, granted a temporary conditional stay on condition that the applicants deposit Kshs. 800,000 with the court as security within 14 days, failing which the stay would automatically lapse; the application was to be served and heard inter partes on 16th December, 2020. At the inter partes hearing neither the applicants nor their counsel attended. Counsel for the respondents, who had filed grounds of opposition arguing that the negative orders in the judgment were incapable of being stayed and that the demand letter did not amount to execution, urged dismissal for non-attendance and non-prosecution. The court dismissed the application with costs to the respondents.

Key legal issues

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01

Entitlement to stay of execution pending intended appeal

Holding

At the exparte stage the court declined a permanent stay but granted a temporary conditional stay on security terms; the stay application was ultimately dismissed for want of prosecution.

Reasoning

The applicants, whose suit claiming 2.80 acres in L.R Muthambi/Erega/204 had been dismissed with costs on 17.11.2020, sought stay of execution pending an intended appeal to the Court of Appeal. On 2nd December, 2020 the court found the threatened eviction sufficiently urgent but granted only a conditional stay requiring a Kshs. 800,000 security deposit within 14 days. When the application came for inter partes hearing on 16th December, 2020 neither the applicants nor their counsel attended, despite service; the respondents filed grounds of opposition and urged dismissal for non-prosecution, which the court granted with costs.

p. 4
02

Effect of non-attendance and non-prosecution at the inter partes hearing

Holding

The application was dismissed for non-attendance and non-prosecution.

Reasoning

The respondents' counsel, Mr. Mark Muriithi, appeared on 16th December, 2020 with grounds of opposition contending that the judgment's negative orders were incapable of being stayed and that the demand letter for vacation of the suit property did not constitute execution capable of being stayed. The applicants and their advocate did not appear. Relying on the non-attendance and non-prosecution, the court dismissed the application and awarded costs to the respondents.

p. 4

Legal principles established

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  • An exparte interim stay may be granted conditionally upon the applicant depositing security with the court within a fixed period, failing which the stay lapses automatically
  • An applicant who fails to attend and prosecute an inter partes hearing of an application risks dismissal of the application

Court orders

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  1. 1.Denial of prayer 3 for permanent stay of execution pending inter partes hearing (exparte ruling of 2nd December, 2020)
  2. 2.Grant of a temporary conditional stay of execution on condition that the applicants deposit Kshs. 800,000 with the court as security within 14 days, failing which the stay would automatically lapse (exparte ruling of 2nd December, 2020)
  3. 3.The application to be properly served upon the respondents within 7 days and set down for inter partes hearing on 16/12/2020
  4. 4.Dismissal of the application for non-attendance and non-prosecution (inter partes ruling of 16th December, 2020)
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Morris Kiruja Mpungu & another v Margret Ngiri Muchiri & another [2020] KEELC 181 (KLR)", Case Analysis (2020). Notice of Motion dated 30th November, 2020 (stay of execution pending intended appeal from judgment of 17.11.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/181/eng@2020-12-16

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