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ELCPartially AllowedNot stated in the judgment (appeal against Makindu SPMCC Civil Case No. 162 of 2014)· [2021] KEELC 355 (KLR)

Sylvester Nthenge v Johstone Kiamba Kiswili [2021] KEELC 355 (KLR)

Environment and Land Court
15 December 2021
TMT. Murigi
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court extended a stay of execution after finding the appellant tried to comply but the other side blocked the process.

What this practically means

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Executive summary

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The Appellant, Sylvester Nthenge, moved the Environment and Land Court by Notice of Motion dated 29 September 2021 seeking extension and variation of stay-of-execution orders issued by Hon. Justice Mbogo on 29 July 2021. Those orders had stayed execution of the judgment of Hon. J.O. Magori (SPM) in Makindu SPMCC Civil Case No. 162 of 2014 pending appeal, on condition that the Appellant deposit security of Kshs 81,280 in a joint interest-earning account in the names of both advocates within 45 days, failing which the Respondent could execute. The Appellant, through the affidavit of its advocate Sethna Atonga, averred that it obtained and served account-opening forms from Kenya Commercial Bank well before the deadline, but the Respondent's advocates failed to cooperate, and the stay consequently lapsed. The Respondent filed no replying affidavit or submissions. The court, Hon. T. Murigi J, framed a single issue: whether the Appellant was entitled to the orders sought. Reviewing Section 80 of the Civil Procedure Act and Order 45 Rule 1, and applying Republic v Public Procurement Administrative Review Board and Shanzu Investments Ltd v Commissioner for Lands, the court held that while no new matter or error apparent on the record was shown, sufficient reason existed for variation: the Appellant had done its part and could not be faulted for the Respondent's non-cooperation. The application was allowed in terms of prayers 4 and 5: the stay was extended pending the appeal, security was to be deposited in court within three days, failing which the Respondent could execute, with costs in the cause.

Key legal issues

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01

Whether the applicant established grounds for review/variation of the stay order of 29 July 2021

Holding

The applicant established sufficient reason: it executed its part of the account-opening process without delay but the Respondent failed to cooperate, so non-compliance with the 45-day condition was not its fault.

Reasoning

The court set out the three limbs of Order 45 (new matter, error apparent, sufficient reason). It found no new matter or error apparent but accepted, on the record, that the Appellant had obtained and served account-opening forms and that the Respondent's failure to execute its part caused the default. The variation would give effect to the underlying ruling.

p. 3
02

Whether the stay of execution should be extended pending the appeal

Holding

Yes - stay orders of 29/7/2021 extended pending the hearing and determination of the appeal, on varied security terms.

Reasoning

The Appellant was ready and willing to deposit the security; failure to complete the joint account was attributable to the Respondent. Extending stay and allowing deposit in court preserved the appeal's utility while protecting the Respondent through a default clause.

p. 3

Legal principles established

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  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 prescribes the conditions and grounds for review.
  • 'Any other sufficient reason' for review need not be analogous to the other enumerated grounds.
  • A party who has done all within its power to comply with a conditional order cannot be faulted where the other party frustrated compliance.

Court orders

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  1. 1.Application dated 29 September 2021 allowed in terms of prayers 4 and 5
  2. 2.Extension of the stay orders issued on 29/7/2021 pending hearing and determination of the main appeal
  3. 3.Variation of the security condition: the Appellant to deposit Kshs 81,280 in court within three days from the date of the ruling, in default the Respondent at liberty to execute
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63(b), 80, 95, 100
  • Civil Procedure RulesOrder 42 Rules 6(2),(3); Order 45; Order 50 Rules 1-7; Order 51 Rule 1
  • Environment and Land Court ActSections 3, 13(7)

Cases cited (3)

  • Margret Mwihaki vs Joseph Muiriuri Mugo
    (2015) eKLR
  • Republic vs Public Procurement Administrative Review Board & 2 Others
  • Shanzu Investments Limited v Commissioner for Lands
    Civil Appeal No 100 of 1993
On appeal from
Principal Magistrates' Court, Makindu
SPMCC Civil Case No. 162 of 2014
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(b), 80, 95, 100 Civil Procedure Act; Sections 3, 13(7) Environment and Land Court Act; Orders 42, 45, 50, 51 Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sylvester Nthenge v Johstone Kiamba Kiswili [2021] KEELC 355 (KLR)", Case Analysis (2021). Not stated in the judgment (appeal against Makindu SPMCC Civil Case No. 162 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/355/eng@2021-12-15

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