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ELCDismissedNot stated in the judgment (appeal against ruling of 25th February 2020 in Thika CMCC 61 of 2016)· [2021] KEELC 3908 (KLR)

Boniface Wanaina Ndungu v Mary Wanjiku Muigua [2021] KEELC 3908 (KLR)

High Court of Kenya
11 March 2021
LGL. GACHERU
2,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to halt execution of a judgment because the appellant only appealed a later ruling, not the judgment itself.

What this practically means

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Executive summary

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This was a ruling by L. Gacheru J of the High Court at Thika on a Notice of Motion dated 3rd March 2020 by the Appellant, Boniface Wainaina Ndungu, seeking stay of execution of the judgment and decree of the Magistrates Court at Thika in CMCC 61 of 2016 delivered on 19th and 20th September 2019, together with prohibitory orders against sixteen subdivided parcels carved from Ruiru/Ruiru East Block 2/3456, and police assistance in enforcement. The applicant contended he was never notified of the lower court proceedings by his then advocates, that the lower court lacked jurisdiction, that the respondent's title was fraudulently acquired, and that the land had been secretly subdivided and transferred to a third party while a church stood on part of it. The respondent opposed, asserting the trial court had jurisdiction, the applicant was duly served and deliberately absent, and the application was a regurgitation of his dismissed defence. The court framed a single issue: whether the applicant was entitled to the orders sought. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the case law on substantial loss, delay, security and nugatory appeals, the court found the applicant had appealed only against the ruling of 25th February 2020 dismissing his review application, not against the judgment itself. There being no appeal against the 19th September 2019 judgment, the court had no jurisdiction to stay its execution. The application was dismissed entirely with costs to the respondent.

Key legal issues

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01

Whether the court has jurisdiction to stay execution of the judgment of 19th September 2019

Holding

It has no jurisdiction because the appeal was lodged against the ruling of 25th February 2020 dismissing review, not against the judgment itself

Reasoning

The court examined the memorandum of appeal dated 2nd March 2020 and found it challenged the ruling on review delivered on 25th February 2020, while the stay sought targeted the judgment and decree of 19th/20th September 2019. Relying on Alba Petroleum v Total Marketing and the underlying Court of Appeal authorities, it held that without a notice of appeal against particular orders there is no jurisdiction to stay those orders.

p. 3
02

Whether the applicant satisfied the Order 42 Rule 6(2) conditions for stay of execution

Holding

The applicant failed to demonstrate substantial loss or that the appeal would be rendered nugatory, since no appeal existed against the judgment whose execution was to be stayed

Reasoning

The court restated the Order 42 Rule 6(2) criteria and the case law on substantial loss, unreasonable delay and security, and on the appeal being rendered nugatory. It concluded that since there was no appeal against the 19th September 2019 judgment, nothing could be rendered nugatory and the foundational condition for stay was absent.

p. 3

Legal principles established

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  • The filing of a notice of appeal against a particular decision is what confers jurisdiction to grant stay of execution of that decision; a notice of appeal against one decision cannot found a stay of an earlier, unappealed decision
  • Stay of execution pending appeal requires substantial loss, application without unreasonable delay, and security; failure to prove one principle dislodges the other

Court orders

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  1. 1.The Notice of Motion dated 3rd March 2020 is dismissed entirely with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Masisi Mwita Vs Damaris Wanjiku Njeri
    (2016) eKLR, Civil Appeal No. 107 of 2015
  • Halal & Another Vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo Vs Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd Vs Stephen Reuben Karunditu
    Civil Application No. 158 of 1994, (1994) LLR 4853
  • Alba Petroleum Limited v Total Marketing Kenya Limited
    [2019] eKLR
  • Nairobi City Council VS Resley
    (2002) EA 494
  • John N. Liboyi versus the Board of Governors of St. John College
    Civil Application No. Nai 13 of 2009 (UR 92/2009)
On appeal from
Magistrates Court at Thika
CMCC 61 of 2016
Jurisdiction invoked
Appellate jurisdiction over the subordinate court's decree; application made under Order 42 Rule 6(2) of the Civil Procedure Rules for stay of execution pending appeal

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, "Boniface Wanaina Ndungu v Mary Wanjiku Muigua [2021] KEELC 3908 (KLR)", Case Analysis (2021). Not stated in the judgment (appeal against ruling of 25th February 2020 in Thika CMCC 61 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3908/eng@2021-03-11

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