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ELCDismissedNot stated in the judgment (arising from ELC Appeal, Kerugoya)· [2020] KEELC 1908 (KLR)

Jane Njeri Muriithi (suing as the Administrator of the Estate of Muriithi Ngari Mbaru alias Titus) v Peter Githinji Muthigani [2020] KEELC 1908 (KLR)

Environment and Land Court
29 May 2020
2,841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) disposed of a Notice of Motion dated 26th July 2019 brought by the applicant, who had been the respondent in an ELC appeal decided on 5th July 2019. The applicant sought stay of execution pending an intended appeal to the Court of Appeal, a temporary injunction protecting the occupation of land parcel MWERUA/KANYOKORA/118 by six named persons, joinder of those persons as interested parties, review of the judgment and an order for re-trial. The respondent opposed, arguing that the applicant had not appealed, that the Court was functus officio, and that the application was a back door appeal with no error apparent on the record. The Court found that the applicant had not alleged substantial loss in his affidavit and had given no security, satisfying only the delay ground for stay. It held that its power to grant a temporary injunction existed only while exercising appellate jurisdiction, which had ceased upon delivery of judgment and lodgment of a Notice of Appeal, leaving the applicant to the Court of Appeal. Joinder after judgment was misconceived because the appeal had been finally disposed of and no damages assessment was pending. On review, the applicant and proposed interested parties had long been aware of the appeal, as shown by Justice Ong'udi's ruling of 19th June 2012 in Embu HCC No. 35 of 2011, so no reviewable ground existed. All prayers were refused and the application was dismissed with costs.

Key legal issues

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01

Stay of execution pending appeal

Holding

Refused - substantial loss not demonstrated and no security given

Reasoning

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.

p. 3
02

Temporary injunction under Order 42 Rule 6(6)

Holding

Refused for want of jurisdiction

Reasoning

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).

p. 3
03

Joinder of interested parties after judgment

Holding

Refused - misconceived and superfluous

Reasoning

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.

p. 3
04

Review of judgment under Order 45 Rule 1(1)

Holding

Refused - no ground established

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 26th July 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 42 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Court of Appeal RulesRules 5(2)(b) and 75

Cases cited (4)

  • SILVERSTEIN VS CHESONI
    (2002) K.L.R 867
  • TANG GAS DISTRIBUTORS LTD VS SAID & OTHERS
    (2014) E.A. 448
  • TERESA CHEBICHII RUTO VS TALALEI KIPTENAI
    MISC. CIVIL APPL. No. 28 of 2015 (ELDORET) (Unreported)
  • KENYA INDUSTRIAL ESTATES LTD VS ANNE CHEPSIROR & 6 OTHERS
    ELC No. 71 of 2013 (ELD) (UR)
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

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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, "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.