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ELCDismissedNot stated in judgment (appeal against dismissal of Preliminary Objection in Ngong ELC No. E015 of 2020)· [2021] KEELC 712 (KLR)

Njoki Kimani & 3 others v Jacob Mwanto Wangora [2021] KEELC 712 (KLR)

Environment and Land Court
22 November 2021
COChristine Ochieng
1,997 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 refused to pause a land case on appeal because the appellants never filed a defence, showing delays weaken applications to stay proceedings.

What this practically means

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Executive summary

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The Appellants, aggrieved by the dismissal of their Notice of Preliminary Objection in Ngong ELC No. E015 of 2020 (Jacob Mwanto Wangora v Njoki Kimani & 3 Others) on 18th March 2021, filed an appeal and a Notice of Motion dated 15th April 2021 under Order 42 Rule 6(1) of the Civil Procedure Rules seeking a stay of the lower court proceedings pending the appeal. The dispute concerns a boundary between the Respondent's ten parcels (subdivisions of NGONG/NGONG/96381) and parcel NGONG/NGONG/9166, which the Respondent had referred to the Land Registrar, Ngong. The Appellants contended the lower court lacked jurisdiction until the boundary dispute was determined, that the application was expeditious and the appeal arguable, and that no prejudice would ensue. The Respondent opposed, noting the Appellants never filed a Defence, the suit remained undefended, the Magistrate had already set the matter for mention to await boundary resolution, and the Appellants were in contempt of court orders. The court, citing Global Tours & Travels and the Supreme Court's decision in IEBC v Jane Cheperenger, framed a single issue: whether the proceedings should be stayed pending appeal. It held that although the application was timely, the Appellants' failure to file a Defence and the presence of other prayers in the Plaint meant the appeal could not be readily deemed arguable, and a stay would hamper expeditious disposal. The application was found unmerited and dismissed with costs. Judgment delivered virtually at Machakos on 22nd November 2021 by Christine Ochieng J.

Key legal issues

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01

Stay of proceedings pending appeal under Order 42 Rule 6(1)

Holding

The Appellants did not meet the threshold of substantial loss, expeditious filing paired with merit, and the interests of justice; stay refused

Reasoning

Although the application was filed timeously, the Appellants never filed a Defence, leaving the lower court suit undefended. Staying an undefended suit would hamper its expeditious disposal. The issues raised in the appeal could be dealt with when the lower court suit is heard and determined, so the balance favoured continuation of proceedings.

p. 3
02

Sufficiency of the Appellants' arguable appeal

Holding

The court hesitated to deem the appeal arguable given the Appellants' failure to file a Defence and the presence of other prayers in the Plaint beyond the boundary dispute

Reasoning

The Plaint sought other prayers besides the boundary determination, and the Appellants never controverted the Respondent's averments by filing a Defence. A Defence should have been filed to anchor the Preliminary Objection, weakening the claim that the appeal was arguable.

p. 3

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 the need for expeditious disposal, arguability of the appeal, judicial time and expeditiousness of the application
  • A preliminary objection must be a pure point of law arising from the pleadings, with no facts to be ascertained

Court orders

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  1. 1.The Notice of Motion application dated 15th April 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesSections 1A, 1B & 3A; Order 42 Rule 6(1); Order 42 Rule 2

Cases cited (6)

  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • Kenya Power & Lighting Co. Ltd Vs Esther Wanjiru Wokabii
    Civil Appeal No. 326 of 2013 (2014) eKLR
  • Ezekiel Mulee Musembi V H. Young & Company (EA) Limited
    (2019) eKLR
  • Independent Electoral and Boundaries Commission V Jane Cheperenger & 2 Others
    Civil Application No. 36 of 2014
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Edward Sargent V Chotabha Jhaverbhat Patel
    (1949) 16 EACA 63
On appeal from
Ngong Magistrate's Court (ELC)
Ngong ELC No. E015 of 2020 Jacob Mwanto Wangora v Njoki Kimani & 3 Others
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 42 Rule 6(1) 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, "Njoki Kimani & 3 others v Jacob Mwanto Wangora [2021] KEELC 712 (KLR)", Case Analysis (2021). Not stated in judgment (appeal against dismissal of Preliminary Objection in Ngong ELC No. E015 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/712/eng@2021-11-22

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