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ELCDismissedMeru (ELC) application dated 26th May 2020, arising from Meru CMCC No. 120 of 1993· [2020] KEELC 1278 (KLR)

Sarah Kanyua Mwithia & Henry Murithi Mwithia (Suing as the legal representatives of Gerald Mwithia) v Stanley Gitonga (Environment & Land Case 62 of 1998) [2020] KEELC 1278 (KLR)

Environment and Land Court
30 September 2020
LMLucy N. Mbugua
1,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The court refused to pause a land ruling because it merely enforced a 2013 Court of Appeal decision that the applicants never challenged.

What this practically means

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Executive summary

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The applicants, the legal representatives of Gerald Mwithia, moved the court by a Notice of Motion dated 26th May 2020 seeking stay of execution of the court's Ruling delivered on 30/4/2020, pending an intended appeal to the Court of Appeal. The ruling had allowed the respondent's application dated 14/10/2013, directing rectification of adjudication records to reinstate parcel No. 447 Kianjai Adjudication Section to the respondent and providing for eviction and police security, in implementation of the Court of Appeal's judgment of 18/7/2013 in Nyeri COA Civil Case No. 297 of 2010, which had set aside the High Court judgment in the parties' long-running land dispute. The applicants contended they would suffer substantial loss and be rendered homeless, offered security and an inhibition, while the respondent argued they had not demonstrated substantial loss, security, or willingness to abide by the court's directions, and that the ownership question had been determined by the Court of Appeal. Applying Order 42 rule 6 of the Civil Procedure Rules and the authorities on stay, Mbugua ELC J held that the ruling sought to be stayed merely gave effect to the Court of Appeal decision, which had not been stayed or appealed more than seven years after delivery. The decree capable of being stayed was therefore the Court of Appeal's decree, not this court's ruling, and there was nothing to be stayed. The application was dismissed with costs to the respondent. The ruling was delivered electronically pursuant to the COVID-19 practice directions, with the parties deemed to have waived compliance with Order 21 rule 1.

Key legal issues

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Whether stay of execution of the court's Ruling of 30/4/2020 ought to be granted pending the intended appeal

Holding

The application was dismissed because the ruling sought to be stayed merely implemented the Court of Appeal judgment of 18/7/2013, which remains in force and is the decree that ought to be stayed

Reasoning

The court traced the litigation history: Gerald Mwithia's suit was dismissed in the magistrate's court, he won on appeal in the High Court, and the Court of Appeal in Nyeri COA Civil Case No. 297 of 2010 set aside the High Court judgment. The 30/4/2020 ruling only gave effect to the Court of Appeal decision, which had not itself been stayed or appealed despite being delivered over seven years earlier. Consequently, the operative decree capable of being stayed is the Court of Appeal's decree, not this court's ruling, and there was nothing to stay.

p. 3

Legal principles established

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  • Stay of execution pending appeal can only be granted against the order being appealed against; where the order sought to be stayed merely gives effect to a superior court's decision that has not been stayed or appealed, there is nothing to be stayed
  • Under Order 42 rule 6(2), stay requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security has been given

Court orders

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  1. 1.The Notice of Motion dated 26th May 2020 seeking stay of execution of the Ruling delivered on 30/4/2020 was dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (4)

  • Catherine Njeri Maranga v Serah Chege & another
    [2017] eKLR
  • Raymond M Omboga vs. Austine Pyan Maranga
    Kisii HCCA No. 15 of 2010
  • Western College of Arts and Applied Sciences v Oranga & Others
    (1976-80) 1 KLR
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Sarah Kanyua Mwithia & Henry Murithi Mwithia (Suing as the legal representatives of Gerald Mwithia) v Stanley Gitonga (Environment & Land Case 62 of 1998) [2020] KEELC 1278 (KLR)", Case Analysis (2020). Meru (ELC) application dated 26th May 2020, arising from Meru CMCC No. 120 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1278/eng@2020-09-30

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