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ELCDismissed(Appeal arising from Butali SPM MCL & E No. 39 of 2019 - number not stated in judgment)· [2021] KEELC 3620 (KLR)
Maurice Jomo Shikhutli v Fred Burudi Murunga & another [2021] KEELC 3620 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#The High Court in Kakamega refused to pause an eviction case because the appellant failed to show he would suffer real, irreversible loss without a stay.
What this practically means
#Executive summary
#This was a notice of motion dated 18th January 2021 by Maurice Jomo Shikhutuli, the appellant, seeking stay of proceedings in Butali SPM MCL & E No. 39 of 2019, an eviction suit brought by the respondents over land parcel North Kabras/Matsakha/848, pending determination of his appeal and of summons for revocation of grant in Butali SPM Succession Cause No. 246 of 2018. The appellant claimed to be an heir of the deceased Murunga Kisosi, beneficially entitled to the suit land where he lives, and alleged the respondents secretly and irregularly obtained a confirmed grant excluding him; he argued the heirship question belonged to the succession cause and that hearing the land case first would render his revocation proceedings a nullity and any prejudice irreparable. The respondents opposed, describing the application as an afterthought and delaying tactic, asserting the appellant was merely a caretaker invited onto the land who had abused that right, that the grant was confirmed on 4th December 2018, that an earlier stay application had been disallowed on 3rd December 2020, and that the appellant was unrelated to the deceased and had himself succeeded to land in Kakamega High Court Succession No. 170 of 1988. N.A. Matheka J applied Order 42 rule 6(1) of the Civil Procedure Rules and held that the orders sought were final orders of the appeal, that the appeal's success would not be rendered nugatory, and that the applicant had not fulfilled any ground for stay. The application was dismissed with costs on 20th April 2021 at Kakamega.
Key legal issues
#01
Whether the conditions for stay of proceedings under Order 42 rule 6(1) were met
Holding
The application was dismissed because the applicant failed to fulfill any of the grounds for stay
Reasoning
The court applied Order 42 rule 6(1) of the Civil Procedure Rules, which requires substantial loss, absence of unreasonable delay and security. It found the orders sought were final orders of the appeal, was not persuaded the appeal's success would be rendered nugatory if eviction proceedings proceeded, and concluded the applicant had fulfilled none of the grounds, dismissing the application with costs.
p. 2
Legal principles established
#- An order for stay of execution or proceedings under Order 42 rule 6(1) requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and such security as the court orders has been given
- An applicant for stay must demonstrate that the success of the appeal would be rendered nugatory if stay is not granted
Court orders
#- 1.The application dated 18th January 2021 is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- Butali Senior Principal Magistrate's Court
- MCL & E No. 39 of 2019 (also referenced as No. 309, 31 and 30 of 2019)
- Jurisdiction invoked
- Order 42 Rule 6(1) & (2) of the Civil Procedure Rules and Sections 3A & 1A of the Civil Procedure Act, Cap 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maurice Jomo Shikhutli v Fred Burudi Murunga & another [2021] KEELC 3620 (KLR)", Case Analysis (2021). (Appeal arising from Butali SPM MCL & E No. 39 of 2019 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3620/eng@2021-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.