Moses Meibako Ngatuny & 2 others v Peipei Ole Mosoiko [2021] KEELC 1141 (KLR)
The bottom line
#A Kenyan court refused a stay of execution but protected the family's land with an injunction until their appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is not res judicata the trial court's ruling because it invokes the appellate court's distinct jurisdiction under Order 42 Rule 6(6)
Order 42 Rule 6(6) empowers the court, in the exercise of its appellate jurisdiction, to grant a temporary injunction where the procedure for appealing from a subordinate court has been complied with. Because this jurisdiction is different from the trial court's, the present application before the appellate court is not res judicata the trial court's earlier dismissal of a stay application.
Stay of execution pending Appeal
Stay refused - substantial loss not demonstrated and no security pledged
The Applicants had to demonstrate the substantial loss they would suffer and to furnish security as mandated by Order 42 Rule 6(2). It was not enough to state they lived on the land. They pledged no security, offering only an undertaking to pay costs. The court declined to make a practice of denying a successful litigant the fruits of judgment.
Temporary injunction pending Appeal
Granted - the intended Appeal is arguable and the Applicants' occupation would be preserved
The Applicants demonstrated that the suit land's title was challengeable as acquired through a null and void process, and the Respondent was not in occupation and could be compensated with costs if the Appeal failed. The intended Appeal being arguable, an injunction under Order 42 Rule 6(6) would prevent the Appeal being rendered nugatory.
Legal principles established
#- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory
- An application for injunction under Order 42 Rule 6(6) filed in the appellate court is not res judicata the trial court's ruling on stay
Court orders
#- 1.Temporary injunctive orders restraining the Respondent from entering or taking possession, subdividing, selling, charging, alienating and/or transacting on suit land No Trans-Mara/Moita/488 pending the hearing and determination of the Appeal
- 2.Applicants/Appellants to compile, file and serve a complete record of Appeal within 45 days, failing which the interim orders lapse automatically
- 3.Deputy Registrar directed to call for the proceedings of the lower Court record for admission of the Appeal to hearing expeditiously
- 4.Costs to abide as per the outcome of the Appeal
- On appeal from
- Magistrates' Court at Kilgoris
- Kilgoris PMCC ELC No. 9 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 Civil Procedure Rules; Sections 1A, 1B, 3A & 63(e) Civil Procedure Act; Sections 7, 13(7), 19 and 26 Environment and Land Court Act; Articles 27(1), 47, 48, 50(1), 159 & 162(2) Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Meibako Ngatuny & 2 others v Peipei Ole Mosoiko [2021] KEELC 1141 (KLR)", Case Analysis (2021). Kilgoris PMCC ELC No. 9 of 2018 (Appeal - Notice of Motion dated 25th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1141/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.