Joyce Mwelu Mulani v Tabitha Nduku Mulani [2021] KEELC 1426 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to pause a nine-year-old land case because the defendant showed no evidence of the harm a stay would prevent.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant demonstrated substantial loss to justify a stay of proceedings pending appeal
The application for stay was dismissed because the Defendant failed to show what substantial loss would result if the suit proceeded to its logical conclusion while the appeal was pursued in the Court of Appeal.
The court held that since the question of whether the ex parte proceedings ought to be set aside would be determined by the Court of Appeal, the Plaintiff would suffer no substantial loss if the suit proceeded. Given the suit was filed over nine years earlier, expeditious disposal and optimum utilisation of judicial time favoured hearing and determining the case, subject to the Court of Appeal's subsequent decision. Without evidence of substantial loss, the stay could not be granted.
The legal requirements for granting a stay of proceedings pending appeal under Order 42 Rule 6(2)
A stay may only be granted where the court is satisfied that substantial loss may result to the applicant unless the order is made, that the application was made without unreasonable delay, and that security has been given.
The court set out Order 42 Rule 6(2) and the authorities holding substantial loss to be the cornerstone of the jurisdiction to grant stay. It noted that the Defendant had only filed a Notice of Appeal, not a Memorandum of Appeal, that the 60-day period for filing the appeal had lapsed, and that no extension of time had been sought. These factors weighed against granting the stay.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant a stay, and an applicant must adduce evidence of the substantial loss that may result unless the stay is granted
- Whether to grant a stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice, weighing factors including expeditious disposal, arguability of the intended appeal, optimum utilisation of judicial time and expeditiousness of the application
Court orders
#- 1.The Defendant's Application dated 23rd February, 2021 is dismissed with costs
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Mwelu Mulani v Tabitha Nduku Mulani [2021] KEELC 1426 (KLR)", Case Analysis (2021). Application dated 23rd February, 2021 (suit commenced by Plaint dated 25th May, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1426/eng@2021-10-22
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