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ELCStruck OutNotice of Motion dated 5th February 2020 (arising from Kerugoya Civil Suit No. 420 of 2009)· [2021] KEELC 4438 (KLR)

Johnson Kinyua Wamai v Eliud Mwai Wamai & another [2021] KEELC 4438 (KLR)

Environment and Land Court
5 February 2021
ECE.C. Cherono
1,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out an application to discharge a 2010 injunction, holding only the trial court executing the decree has that power.

What this practically means

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Executive summary

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Eliud Mwai Wamai and John Mugo Wamai, who obtained judgment against the defendant in Kerugoya Civil Suit No. 420 of 2009 on 12th April 2019, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 5th February 2020 seeking discharge of temporary injunction orders issued on 24th February 2010 by the trial magistrate (Hon. S.N. Mbungi, P.M.) and registered against land parcel Kirinyaga/Gathigiriri/441, so as to enable execution of the decree. The appellant opposed the application, contending there was a pending appeal against the judgment and that only the court that issued the orders could discharge them. The applicants argued that an appeal does not operate as an automatic stay and that they were entitled to enjoy the fruits of their judgment absent stay orders, citing Asset Recovery Agency v Charity Wangui Gethi. The appellant invoked Section 34 of the Civil Procedure Act, submitting that only the court which issued the orders had jurisdiction to vary or discharge them. E.C. Cherono, ELC Judge, agreed: the injunction orders were issued by the trial court, which is the court executing the decree, and under Section 34 questions relating to execution, discharge or satisfaction of a decree must be determined by that court and not a separate court. The court found the application a non-starter and an abuse of the court process, struck it out with costs to the appellant.

Key legal issues

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01

Jurisdiction of the appellate court to discharge injunction orders issued by the trial court

Holding

The application was misconceived; the court executing the decree has exclusive jurisdiction under Section 34 of the Civil Procedure Act to discharge the orders, so the application should have been made in the trial court

Reasoning

The court examined the order of 24th February 2010 and found it was a temporary injunction issued by the trial magistrate, not by the ELC. Section 34 of the Civil Procedure Act vests jurisdiction over questions relating to execution, discharge or satisfaction of a decree exclusively in the court executing the decree. Since the ELC is an appellate court from the subordinate court and not the court executing the decree, the application was a non-starter and an abuse of process.

p. 3

Legal principles established

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  • Questions relating to the execution, discharge or satisfaction of a decree must be determined by the court executing the decree and not by a separate court

Court orders

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  1. 1.The application dated 5th February 2020 is struck out
  2. 2.Costs of the application to the appellant

Authorities

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Legislation

  • Civil Procedure ActSection 34(1)
  • Civil Procedure Rules (Order 42)Order 42 Rules, 2010

Cases cited (5)

  • Asset Recovery Agency Vs Charity Wangui Gethi
    (2020) e K.L.R.
  • Carl Ronning Societe Vs Naval Chargeurs Delmas Viel Jelix (The Francois Vieljeux)
    (1984) K.L.R.
  • Edward Karanja Ragui Vs Barclays Bank of Kenya
    (Nairobi Milimani Commercial Courts, HCCC No. 927 of 2002)
  • Pithon Waweru Maina Vs Thika Mugiria
    (1983) e K.L.R.
  • Mobile Kittale Service Station Vs Mobil Oil Kenya Ltd & Another
    (2004) e K.L.R.
On appeal from
Chief Magistrate's Court, Kerugoya
Kerugoya Civil Suit No. 420 of 2009
Jurisdiction invoked
Section 34 of the Civil Procedure Act (Cap. 21 Laws of Kenya)

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, "Johnson Kinyua Wamai v Eliud Mwai Wamai & another [2021] KEELC 4438 (KLR)", Case Analysis (2021). Notice of Motion dated 5th February 2020 (arising from Kerugoya Civil Suit No. 420 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4438/eng@2021-02-05

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