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ELCDismissedNot stated in the excerpt (Notice of Motion dated 9th March 2020, Kisii Environment and Land Court)· [2021] KEELC 2537 (KLR)

Nyakundi Onchiri v Nyamwange Nyang’au & 2 others [2021] KEELC 2537 (KLR)

Environment and Land Court
14 July 2021
1,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the Defendant/Applicant's Notice of Motion dated 9th March 2020 in which he sought a stay of execution of the judgment of 9th October 2018 and the decree issued on 31st October 2018 pending appeal. The underlying suit concerned encroachment on land parcel No. Central Kitutu/Mwogeto/1230; the court had referred the boundary dispute to the Land Registrar and County Surveyor, whose report of 23rd May 2018 found that the Defendants, owners of parcel No. Central Kitutu/Mwogeto/1239, had encroached approximately 0.1Ha. The report was adopted as judgment on 9th October 2018, with an order to vacate within 30 days. The Defendants, who had not filed a defence, earlier applied to set aside the judgment and stay execution; that application was dismissed by Mutungi J on 23rd October 2019. Onyango J framed two issues: entitlement to stay pending appeal, and whether the judgment should be set aside. The court held that no appeal was technically pending since no extension of time to appeal had been obtained, rendering the application incompetent. Even assuming leave had been granted, the Applicant failed to satisfy the cumulative conditions of Order 42 Rule 6: substantial loss was not demonstrated, there was an unexplained four-month delay, and no willingness to furnish security was shown. The court also held it could not sit on appeal over a ruling by a judge of concurrent jurisdiction. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Entitlement to stay of execution pending appeal

Holding

The application failed both because no appeal was technically pending (no extension of time obtained) and because none of the Order 42 Rule 6 conditions - substantial loss, absence of unreasonable delay, and offer of security - was demonstrated.

Reasoning

The Notice of Appeal was filed four months after the ruling sought to be appealed, and at the time of the application no extension of time had been granted, so no appeal was pending. Further, the unexplained four-month delay, absence of demonstrated substantial loss, and failure to indicate willingness to furnish security meant the cumulative requirements of Order 42 Rule 6 were unmet. An earlier, similar application had also been dismissed by Mutungi J, and a court of concurrent jurisdiction cannot revisit that ruling.

p. 2
02

Whether the judgment entered on the boundary report should be set aside

Holding

The court could not set aside the judgment of 9th October 2018 because an identical earlier application had been dismissed by Mutungi J on 23rd October 2019, and this court cannot sit on appeal over a ruling by a judge of concurrent jurisdiction.

Reasoning

The Applicant sought a second opportunity to challenge the judgment after Mutungi J had declined to set it aside in a ruling delivered on 23rd October 2019. The court characterised this as a second bite at the cherry and held that it lacked power to review the ruling of a judge of concurrent jurisdiction, leaving the dismissal intact.

p. 3

Legal principles established

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  • All the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules must be satisfied simultaneously before a stay pending appeal can be granted
  • A stay of execution pending appeal cannot issue where no appeal is pending, as where the applicant has not obtained an extension of time to appeal
  • A judge cannot sit on appeal over a ruling by a judge of concurrent jurisdiction

Court orders

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  1. 1.The application dated 9th March 2020 seeking stay of execution pending appeal is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Civil Procedure ActSections 1, 3 and 3A
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (5)

  • M.O.M Amin Transporters Limited & Another v Alexander Ndung'u Mbugua & 2 Others
    [2017] eKLR
  • Kiplagat Kotut vs Rose Jebor Kipngok
    [2015] eKLR
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Kenya Shell Limited vs Kibiru
    (Supra)
  • Equity Bank Limited v Taiga Adams Company Limited
    [2006] eKLR
Jurisdiction invoked
Sections 1, 3 and 3A of the Civil Procedure Act (application for stay of execution pending appeal under Order 42 Rule 6 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, "Nyakundi Onchiri v Nyamwange Nyang’au & 2 others [2021] KEELC 2537 (KLR)", Case Analysis (2021). Not stated in the excerpt (Notice of Motion dated 9th March 2020, Kisii Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2537/eng@2021-07-14

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