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ELCPartially AllowedNotice of motion dated 17th June, 2020 (Machakos/Makueni ELC suit, reference to ruling of 26th May, 2020)· [2020] KEELC 627 (KLR)

Jeremiah Wambua v Pius Mbengei Musyoki [2020] KEELC 627 (KLR)

Environment and Land Court
19 November 2020
CMC. G. MBOGO
1,981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff/Applicant, Jeremiah Wambua, moved the Environment and Land Court at Makueni by notice of motion dated 17th June, 2020 seeking, principally, leave for the firm of Muema & Associates Advocates to come on record in place of J. M. Tamata & Company Advocates, and a stay of the court's decision of 26th May, 2020 pending hearing of an appeal. The application, anchored on Order 12 Rule 7, Order 9 Rules 9 and 10, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, was opposed by the Defendant/Respondent, Pius Mbengei Musyoki, who argued that only a notice of intention to appeal had been filed, that a notice of appeal was not annexed as alleged, and that the applicant was abusing court process to delay a confirmed grant in the estate of the late Musyoki Mwini. The applicant relied on Equity Bank Ltd vs. West Link Mbo Ltd to submit that a lawful notice of appeal deems an appeal to exist. The court found that the applicant's application of 6th February, 2020 seeking to arrest the ruling ought to have been heard before the ruling was delivered on 26th May, 2020, but was not brought to the court's attention. It declined to determine the validity of the notice of appeal, holding that this is within the province of the Court of Appeal, and found the applicant within his right to appeal. The court granted prayers 2 and 5: leave for the new advocates to come on record and a stay of the 26th May, 2020 decision, conditional on the applicant filing his record of appeal within 120 days, failing which the stay lapses. Costs were to be in the cause.

Key legal issues

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01

Whether a notice of intention to appeal suffices to anchor an application for stay of execution pending appeal

Holding

The court did not decide the validity of the notice of appeal, holding that such determination belongs to the Court of Appeal, and treated the applicant as being within his right to appeal.

Reasoning

The court observed that it is not the trial court's role to determine the validity of a notice of appeal or its thresholds, as that is the province of the Court of Appeal. Since there was no evidence that the applicant had been supplied with proceedings and failed to prepare a record of appeal, the court concluded he was within his right to appeal against the ruling of 26th May, 2020, and granted the stay on conditions.

p. 3
02

Whether a pending application to arrest the rendering of a ruling should have been heard before the ruling was delivered

Holding

The application dated 6th February, 2020 seeking to arrest the ruling ought to have been heard first, but was not brought to the court's attention before the ruling was delivered.

Reasoning

The court acknowledged that the plaintiff had filed an application on 6th February, 2020 seeking to stay the ruling scheduled for 28th April, 2020. Delivery was delayed by the covid-19 pandemic and the ruling was ultimately delivered on 26th May, 2020 without hearing that application. The court accepted that the application ought to have been heard first but noted it was not brought to the court's attention.

p. 3

Legal principles established

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  • A trial court cannot determine the validity or threshold of a notice of appeal; that is within the province of the Court of Appeal.
  • A litigant aggrieved by a ruling is within his right to appeal against it where there is no evidence he was supplied with proceedings and failed to prepare a record of appeal.

Court orders

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  1. 1.Grant of prayer 2: leave for the firm of MUEMA & ASSOCIATES ADVOCATES to come on record in place of J. M. TAMATA & COMPANY ADVOCATES
  2. 2.Grant of prayer 5: stay of the decision made on 26th May, 2020 pending hearing of the appeal, conditional on the Plaintiff/Applicant filing his record of appeal at the Court of Appeal within 120 days, failing which the order of stay will lapse
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 9 Rules 9 and 10
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 3 and 3A

Cases cited (1)

  • Equity Bank Ltd vs. West Link Mbo Ltd
    [2013] eKLR
Jurisdiction invoked
Order 12 Rule 7, Order 9 Rules 9 and 10 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 3 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, "Jeremiah Wambua v Pius Mbengei Musyoki [2020] KEELC 627 (KLR)", Case Analysis (2020). Notice of motion dated 17th June, 2020 (Machakos/Makueni ELC suit, reference to ruling of 26th May, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/627/eng@2020-11-19

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