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ELCStruck OutELC Appeal No. 4 of 2021· [2021] KEELC 996 (KLR)

Fred Waswala v Everlyne Nasimiyu Ejilo & another [2021] KEELC 996 (KLR)

Environment and Land Court
28 October 2021
BOB. N. Olao
320 words in judgment
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The bottom line

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A Kenyan court struck out a stay-of-execution application because the applicant failed to attach the judgment and decree being appealed.

What this practically means

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Executive summary

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This is a brief in-chamber ruling by Boaz N. Olao J of the Environment and Land Court at Bungoma on a Notice of Motion dated 14th September 2021, filed under certificate of urgency in an appeal (ELC Appeal No. 4 of 2021) arising from BUNGOMA CMCC No. 200 of 2015. The applicant, Fred Waswala, sought a stay of execution of the judgment and decree issued by the subordinate court, whose judgment had been delivered on 11th August 2021, pending the hearing of the appeal. The Court found the application incompetent because the applicant had not provided the judgment and decree sought to be stayed - the only document before the Court was the bill of costs. The judge acknowledged that typing of the judgment might take time but observed that certified copies of the handwritten judgment could readily be obtained and the decree procured within a day. The Court emphasized that substantial loss is the cornerstone of stay applications and that it could not assess that issue, or exercise its discretion at all, without the underlying judgment and decree. The motion was accordingly struck out, with liberty granted to the applicant to file a fresh application taking into account the Court's observations. No costs order was made and no authorities or statutory provisions were cited in the ruling.

Key legal issues

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01

Whether a stay application is competent when the judgment and decree sought to be stayed are not annexed

Holding

The application was incompetent for want of the judgment and decree, and was struck out with liberty to file afresh

Reasoning

The Court held it could not exercise its discretion without the judgment and decree. Certified copies of the handwritten judgment could readily be obtained despite typing delays, and the decree could be obtained within a day. With only the bill of costs on record, the Court had no efficient information to evaluate substantial loss, the cornerstone of such applications. The motion was therefore struck out, but not with finality - the applicant may move afresh.

p. 2

Legal principles established

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  • An application for stay of execution must be supported by copies of the judgment and decree sought to be stayed, without which the court cannot exercise its discretion or evaluate substantial loss
  • Substantial loss is the cornerstone of stay-of-execution applications and cannot be determined without all relevant information regarding the decision sought to be stayed

Court orders

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  1. 1.The Notice of Motion dated 14th September 2021 and filed on 28th September 2021 was declared incompetent and struck out
  2. 2.The Applicant was granted liberty to file a fresh application taking into account the Court's observations
On appeal from
Bungoma Chief Magistrate's Court (implied)
BUNGOMA CMCC No. 200 of 2015
Jurisdiction invoked
Inherent appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts; not expressly cited in the ruling

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, "Fred Waswala v Everlyne Nasimiyu Ejilo & another [2021] KEELC 996 (KLR)", Case Analysis (2021). ELC Appeal No. 4 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/996/eng@2021-10-28

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