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ELCStruck OutMiscellaneous Application dated 4/06/2020 (arising from Mavoko CMCC ELC No. 160 of 2013)· [2021] KEELC 1390 (KLR)
Ngalawa Housing Co-operative Society Ltd v Benjamin Maina Koyra [2021] KEELC 1390 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Defendant/Applicant moved the Environment and Land Court at Machakos by a Notice of Motion dated 4/06/2020, brought under Order 22 Rule 22, Order 42 Rules 4 & 6 and Order 51 of the Civil Procedure Rules and Article 159(d) of the Constitution, seeking stay of execution of an ex-parte judgment delivered on 13/05/2020 by Chief Magistrate C.C Oluoch in Mavoko CMCC ELC No. 160 of 2013, both pending the application and pending Machakos Civil ELC Appeal No. 12 of 2020. The Applicant argued that the judgment was unprocedurally delivered without consent for electronic delivery, contrary to Covid-19 pandemic directions, that he had been denied the chance to file submissions, and that grave orders of permanent injunction, eviction and demolition against his homestead exposed him to immediate execution. The Plaintiff/Respondent opposed through Grounds of Opposition and a Replying Affidavit, contending that notice of the judgment was sent to both advocates' email addresses and that the application should be dismissed with costs. Justice O. A. Angote considered Order 42 Rule 6 and held that a stay application belongs in the appeal file, not a miscellaneous application. Not having filed the application in Machakos ELCA No. 12 of 2020, the court found the application incompetent and struck it out with costs on 22 October 2021.
Key legal issues
#01
Competence of a stay of execution application brought by way of miscellaneous application
Holding
The application is incompetent because it was not filed in the appeal file
Reasoning
Under Order 42 Rule 6(1) and (2), stay of execution can only be granted where a party has filed an appeal and shows substantial loss. Since the stay application relates to an appeal, it must be lodged in the appeal file rather than a miscellaneous file, which is distinct from the appeal. Having filed the application separately, the Applicant's application failed and was struck out.
p. 2
Legal principles established
#- An application for stay of execution pending appeal must be filed in the appeal file, not in a miscellaneous application, failing which it is incompetent
Court orders
#- 1.The Application dated 4th June, 2020 struck out with costs
- On appeal from
- Chief Magistrate's Court, Mavoko
- Mavoko CMCC ELC No. 160 of 2013
- Jurisdiction invoked
- Order 22 Rule 22, Order 42 Rules 4 & 6, Order 51 Civil Procedure Rules and Article 159(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngalawa Housing Co-operative Society Ltd v Benjamin Maina Koyra [2021] KEELC 1390 (KLR)", Case Analysis (2021). Miscellaneous Application dated 4/06/2020 (arising from Mavoko CMCC ELC No. 160 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1390/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.