Francis Kiarie Kamau & Michael Kamau Wandegwa v Sammy Kimemia Njuguna & Theresa Wairimu Njuguna (Environment & Land Case 650 of 2017) [2021] KEELC 279 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal can issue after the decree has been executed
Stay cannot be granted where the decree has already been executed and the property now belongs to a third party not party to the suit; the application was made too late
The parcel register exhibited by the applicant showed the caution was vacated on 22/10/2021 pursuant to the decree and the suit property transferred the same day to Thika East Park Limited, a non-party. Execution having occurred, no decree remained to be stayed. Granting orders affecting the new registered proprietor in her absence would breach the rules of natural justice. The court therefore declined stay under Order 42 rule 6(2).
Whether a post-judgment injunction pending hearing of the application should issue
The plea is spent because the injunction was sought only pending the inter partes hearing and determination of the application, which is now disposed of
The court noted that the injunctive orders were expressly sought pending the interpartes hearing of the motion. The motion having been heard and determined by the ruling, nothing remains to be preserved pending its own hearing, rendering the plea moot and spent.
Supply of typed and certified proceedings for the record of appeal
The court directed the Registry to immediately type and issue certified proceedings to the 2nd defendant, though the applicant should ordinarily not need such an order
The court held that parties desiring typed and certified proceedings should be supplied expeditiously as of course, making the formal order arguably unnecessary, but nonetheless issued a directive that the proceedings be typed and issued immediately to enable the applicant to compile the record of appeal.
Legal principles established
#- Once a decree has been executed and the subject property transferred to a third party, an application for stay of execution pending appeal comes too late and cannot be granted; nor can the court issue orders against a third party in their absence
Court orders
#- 1.The plea for post-judgment injunctive orders is declared spent as it was sought pending the hearing and determination of the application, which is now disposed
- 2.The plea for stay of execution pending an intended appeal is declined on the ground that the decree has been executed and the land is now held by a third party who is not a party to the suit
- 3.The Court Registry is directed to forthwith type and avail to the 2nd defendant certified copies of the typed proceedings in this file
- 4.No order as to costs of the application
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules; inherent jurisdiction under Sections 3A and 63(e) of the Civil Procedure Act invoked by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kiarie Kamau & Michael Kamau Wandegwa v Sammy Kimemia Njuguna & Theresa Wairimu Njuguna (Environment & Land Case 650 of 2017) [2021] KEELC 279 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/279/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.