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ELCDismissedEldoret CMC E&L No. 310 of 2018 (Appeal) - Application dated 21st September 2020· [2021] KEELC 4183 (KLR)

Nebart Otano & another v Joseph Macharia Wambugu [2021] KEELC 4183 (KLR)

Environment and Land Court (appellate jurisdiction over subordinate court)
16 February 2021
MOM. A. Odeny
1,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to pause a decree that had already been fully executed, warning appellants must apply for stay urgently after judgment.

What this practically means

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Executive summary

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This ruling by M. A. Odeny J, delivered at Eldoret on 16th February 2021, determined an application dated 21st September 2020 by the appellants seeking stay of execution of the decree, certificate of costs and all consequential orders arising from the judgment in Eldoret CMC E&L No. 310 of 2018, pending hearing and determination of their appeal. Counsel canvassed the application by written submissions. The applicants argued the application was filed without undue delay, that they would suffer irreparable loss because the subject matter was a public access road the respondent intended to fence off, rendering them and the public landlocked such that no damages could compensate, and that they were ready to provide security. The respondent opposed, showing the decree was extracted on 25th June 2020 and fully executed, and that a stay application in the lower court had already been dismissed on 18th September 2020 for that reason. The court applied Order 42 Rule 6 of the Civil Procedure Rules and held that the purpose of a stay is to preserve the subject matter; where the decree has been fully executed there is nothing capable of being stayed, and courts do not issue orders in vain. The court declined to reach the issues of substantial loss and security, found the application lacking in merit and dismissed it with costs to the respondent.

Key legal issues

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Whether stay of execution can be granted where the decree has already been fully executed

Holding

The application was dismissed because the decree had been fully executed; a stay order would be incapable of implementation and courts do not issue orders in vain.

Reasoning

Order 42 Rule 6 requires an application for stay to be filed expeditiously to avoid the scenario of a respondent proceeding with execution. The respondent extracted the decree on 25th June 2020 and fully executed it; a stay application filed by the lower court on 8th July 2020 was dismissed on 18th September 2020 on the ground of full execution. Since the purpose of a stay is to preserve the subject matter, and the subject matter had already been dealt with, the court declined to consider the remaining limbs of substantial loss and security.

p. 3

Legal principles established

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  • The purpose of a stay of execution is to preserve the subject matter in dispute; where the decree has been fully executed there is nothing to stay and courts do not issue orders in vain

Court orders

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  1. 1.Application for stay of execution dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (8)

  • Cynthia Achieng Marere v Athanas Shibwom Asiavugwa
    [2015] eKLR
  • Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another
    [2014] eKLR
  • Kitamaiyu Limited v County Government - Kiambu & another
    [2018] eKLR
  • Maz Mohammed Janmohamed v Commissioner for Lands & 4 Others
    (1996) eKLR
  • Kiplagat Kotut v Rose Jebor Kipngok
    [2015] eKLR
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret eKLR [2012]
  • RWW v EKW
    [2019] eKLR
On appeal from
Chief Magistrate's Court, Eldoret
CMC E&L NO. 310 OF 2018
Jurisdiction invoked
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, "Nebart Otano & another v Joseph Macharia Wambugu [2021] KEELC 4183 (KLR)", Case Analysis (2021). Eldoret CMC E&L No. 310 of 2018 (Appeal) - Application dated 21st September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4183/eng@2021-02-16

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