Kutima Investments Limited v Muthoni Kihara & another [2020] KEELC 1501 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed a bid to pause a 21-year-old land and mining case because the appeal notice was filed late and no real loss was shown.
What this practically means
#Executive summary
#Key legal issues
#Competency of the intended appeal as a foundation for stay
The Notice of Appeal filed on 12 February 2020 against the directions of 27 January 2020 was out of the 14 days prescribed by Rule 75(2) of the Court of Appeal Rules, so the applicant could not demonstrate a competent appeal capable of anchoring a stay of proceedings
Rule 75(2) requires a Notice of Appeal to be lodged within fourteen days of the decision appealed from. The decision was made on 27 January 2020, so the notice was due by 10 February 2020. Filing on 12 February 2020 was out of time, and without a competent appeal there is nothing to stay proceedings in aid of.
Competency of the supporting affidavit sworn by a stranger
The supporting affidavit sworn by Godfrey Kihara Kamau, who claimed to be a director of the applicant when the 1st defendant is an individual (Muthoni Kihara), was incompetent and could not support the application
The 1st defendant is an individual, not a corporate body, so the deponent could not be a director of the applicant. He gave no explanation of his capacity or proximity to the case, and no rights or obligations were sought against him. Without such disclosure the affidavit is incompetent and the application, being improperly supported, must fail.
Whether the same principles govern stay of execution and stay of proceedings
Order 42 Rule 6 applies to both stay of execution and stay of proceedings, and the principles in Rule 6(2) apply mutatis mutandis to an application for stay of proceedings; Rule 5(2)(b) of the Court of Appeal Rules does not apply to this court
Rule 6(1) explicitly mentions both stay of execution and stay of proceedings. Although Rule 6(2) refers only to stay of execution, its principles — no inordinate delay, substantial loss, and security — apply equally to stay of proceedings. Rule 5(2)(b) of the Court of Appeal Rules is confined to the Court of Appeal itself, and Section 3A of the Civil Procedure Act is only a residual general power, with Order 42 Rule 6(2) being the first port of call.
Whether substantial loss was demonstrated
No substantial loss was demonstrated; the applicant could not show what loss she would suffer if the application for withdrawal of suit were heard first, since that application has not yet been determined and any appeal could still be pursued in the Court of Appeal
The appeal targets a purely procedural direction prioritising the withdrawal application. The withdrawal application has not been considered, so its outcome is unknown, and even if it succeeds the applicant can, subject to leave, pursue all substantive issues in the Court of Appeal. Without demonstration of substantial loss the application fails even on its merits.
Legal principles established
#- The principles in Order 42 Rule 6(2) of the Civil Procedure Rules apply, mutatis mutandis, to applications for stay of proceedings as well as stay of execution
- Rule 5(2)(b) of the Court of Appeal Rules applies strictly to the Court of Appeal and cannot be used by the superior court to determine a stay application filed before it
- A stay pending appeal cannot be granted where the Notice of Appeal was filed out of time and there is no competent appeal
- An application for stay of proceedings must be supported by an affidavit of a party to the proceedings, or the capacity and proximity of the deponent must be disclosed and explained
Court orders
#- 1.The application dated 7 March 2020 seeking stay of proceedings pending appeal is dismissed
- 2.Costs of the application to the plaintiff
- Jurisdiction invoked
- Inherent jurisdiction under Section 3A of the Civil Procedure Act, Cap 21, and Order 42 Rule 6 of the Civil Procedure Rules (application for stay of proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kutima Investments Limited v Muthoni Kihara & another [2020] KEELC 1501 (KLR)", Case Analysis (2020). Not stated in the judgment (suit commenced by plaint filed in 1999; application dated 7 March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1501/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.