Jane Njeri Muriithi (suing as the Administrator of the Estate of Muriithi Ngari Mbaru alias Titus) v Peter Githinji Muthigani [2020] KEELC 1908 (KLR)
The bottom line
#A Kenyan land court refused to pause a judgment because the applicant showed no real loss, offered no security, and should have gone to the Court of Appeal.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution pending appeal
Refused - substantial loss not demonstrated and no security given
The applicant's supporting affidavit nowhere stated that substantial loss would result. Although the application was filed within 21 days, which was not unreasonable delay, the applicant offered no security or undertaking for due performance of the decree. All three conditions under Order 42 Rule 6(2) must be satisfied, so the stay failed.
Temporary injunction under Order 42 Rule 6(6)
Refused for want of jurisdiction
The power to grant a temporary injunction exists only where the Court is exercising appellate jurisdiction. Having rendered its decision on 5th July 2019, and with a Notice of Appeal lodged to the Court of Appeal, the Court had ceased exercising that jurisdiction; the appropriate forum is the Court of Appeal under Rule 5(2)(b).
Joinder of interested parties after judgment
Refused - misconceived and superfluous
While joinder may be sought at any stage, post-judgment joinder is available only where damages remain to be assessed. The judgment of 5th July 2019 finally disposed of all issues in the appeal, leaving nothing pending, so the Tang Gas Distributors principle rendered the prayer inapplicable.
Review of judgment under Order 45 Rule 1(1)
Refused - no ground established
Review requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason. The applicant and the proposed interested parties were aware of the appeal throughout, as demonstrated by Justice Ong'udi's ruling of 19th June 2012 in Embu HCC No. 35 of 2011, so no reviewable ground arose.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay pending appeal; it is what must be prevented by preserving the status quo
- An applicant for stay pending appeal must satisfy all three grounds: substantial loss, no unreasonable delay, and security for due performance
- A first appellate court may grant a temporary injunction only while exercising its appellate jurisdiction; once judgment is rendered and a Notice of Appeal lodged, the power lapses
- Joinder of a party after judgment is possible only where damages are yet to be assessed; once proceedings are finally disposed of the rule becomes inapplicable
Court orders
#- 1.The Notice of Motion dated 26th July 2019 is dismissed with costs
- On appeal from
- Magistrate's Court, Baricho (Land Disputes Tribunal appeal LDT No. 3 of 2008)
- LDT No. 3 of 2008
- Jurisdiction invoked
- Order 1, Order 40 Rule 1, Order 45 Rule 1 and Order 42 Rule 1 CPR and Sections 1A, 1B and 3A CPA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Njeri Muriithi (suing as the Administrator of the Estate of Muriithi Ngari Mbaru alias Titus) v Peter Githinji Muthigani [2020] KEELC 1908 (KLR)", Case Analysis (2020). Not stated in the judgment (arising from ELC Appeal, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1908/eng@2020-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.