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ELCDismissedNot stated in judgment· [2020] KEELC 3756 (KLR)

Paul Kiroket Ole Mutunkei v Magana Holdings Limited & another [2020] KEELC 3756 (KLR)

Environment and Land Court
27 January 2020
1,316 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado land court refused to pause a case pending appeal because the applicant showed no harm and no proof of a serious appeal.

What this practically means

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Executive summary

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The Environment and Land Court at Kajiado (Christine Ochieng, J) determined the 1st Defendant's Notice of Motion dated 11th February 2019 seeking a stay of proceedings pending appeal, brought under Sections 1A and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rules 1 & 3 of the Civil Procedure Rules, together with the Plaintiff's Notice of Preliminary Objection filed 21st May 2019. The 1st Defendant had filed a Notice of Appeal against a Ruling of the court delivered on 30th July 2018 and contended that unless proceedings were stayed the appeal would be rendered nugatory. The Plaintiff objected that the court lacked jurisdiction to stay proceedings, there being no power under the Appellate Jurisdiction Act for the High Court to do so. The court framed a single issue: whether the proceedings should be stayed pending the appeal. Relying on Ringera J's dictum in Global Tours & Travels Limited, the court held that stay of proceedings is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, the arguability of the appeal, judicial time and expedition. Although the application was brought without unreasonable delay, the Applicant failed to annex the Record of Appeal or Memorandum of Appeal to demonstrate an arguable appeal, and showed no prejudice since it remained the registered proprietor and occupier of the suit land, with no injunctive reliefs against it and no Order 11 compliance yet. The stay would hamper expeditious disposal. The application was found unmerited and disallowed, with costs in the cause.

Key legal issues

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01

Whether proceedings should be stayed pending appeal

Holding

The application for stay of proceedings was refused. Although brought without undue delay, the applicant showed no prejudice since it remains registered proprietor and in occupation of the suit land, no injunctive relief was in place against it, and no Memorandum of Appeal was exhibited to show an arguable appeal.

Reasoning

Applying Order 42 Rule 6 and Ringera J's discretion test in Global Tours & Travels, the court weighed the need for expeditious disposal, the prima facie arguability of the appeal, judicial time and expedition. The applicant failed to annex the Record of Appeal or Memorandum of Appeal, did not demonstrate prejudice, and parties had not even complied with Order 11 to set the suit down. The stay would hamper expeditious disposal, so the application was unmerited.

p. 2
02

Whether the court has jurisdiction to stay proceedings pending appeal

Holding

The Plaintiff's preliminary objection challenging jurisdiction was implicitly rejected; the court proceeded to determine the application on its merits under Order 42 Rule 6 and its inherent jurisdiction.

Reasoning

The Plaintiff objected that the High Court lacked jurisdiction to stay proceedings under the Appellate Jurisdiction Act. The court did not strike out the application on that basis; instead it analysed the motion under Order 42 Rule 6 of the Civil Procedure Rules and exercised judicial discretion, indicating it found it had power to consider the application for stay of proceedings.

p. 1

Legal principles established

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  • Whether to grant a stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and expedition of the application
  • An applicant for stay of execution must show substantial loss and that the application was made without unreasonable delay (Order 42 Rule 6(2)(a))

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 11th February, 2019 seeking stay of proceedings pending appeal is disallowed as unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(1)(a) and 6(2)(a)
  • Civil Procedure RulesOrder 51 Rules 1 & 3
  • Civil Procedure RulesOrder 11

Cases cited (10)

  • Elena Doudoladova Korir V Kenyatta University
    (2014) eKLR
  • Anne Njeri Mwangi V Muzaffer Musafee Essajee & Another
    (2014) eKLR
  • Amal Hauliers Limited V Abdulnasir Abukar Hassan
    (2017) eKLR
  • African Safari Club Limited V Safe Rentals Limited
    (2010) eKLR
  • Mary Wambui Munene V Peter Gichuki Kingara & 2 Others
    (2014) eKLR
  • Ezekiel Mule Musembi V H Young & Company (EA) Limited
    (2019) eKLR
  • James Njuguna Chui V John Njogu Kimani
    (2014) eKLR
  • Benson Muiruri V Kenya National Capital Corporation
    HCCC No 1981 of 1993
  • Owners of Motor Vessels (Lillian S) V Caltex Oil Kenya Limited
    (1989) 1KLR
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rules 1 & 3 of the Civil Procedure Rules

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, "Paul Kiroket Ole Mutunkei v Magana Holdings Limited & another [2020] KEELC 3756 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3756/eng@2020-01-27

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