Nyakundi Onchiri v Nyamwange Nyang’au & 2 others [2021] KEELC 2537 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Entitlement to stay of execution pending appeal
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.
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.
Whether the judgment entered on the boundary report should be set aside
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.
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.
Legal principles established
#- 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
#- 1.The application dated 9th March 2020 seeking stay of execution pending appeal is dismissed with costs to the Respondent.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.