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ELCDismissedNot stated in judgment· [2021] KEELC 4492 (KLR)

Wilson Kajuki M’Eringa v Martin Gitonga Mugaa (Sued as the Legal Representative of Muga Mugambi – Deceased) [2021] KEELC 4492 (KLR)

Environment and Land Court
3 February 2021
LMLucy N. Mbugua
884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause enforcement of earlier orders, ruling the defendant couldn't relitigate an already-settled occupation dispute.

What this practically means

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Executive summary

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The defendant filed an application on 18.2.2020 under Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 42 Rule 6(2) of the Civil Procedure Rules seeking stay of execution of a ruling delivered on 22.1.2020, in which the court had granted injunction and inhibition orders in favour of the plaintiff in an application dated 16.7.2019. The defendant contended he was aggrieved by the ruling, that the plaintiff had been visiting the land threatening to evict him, that he stood to suffer substantial loss, and that his intended appeal would be rendered nugatory. The plaintiff opposed the application by replying affidavit filed 26.2.2020, asserting that the court had already determined that the plaintiff was the one on the land, that the orders sought would cause delay, that no security had been offered, and that no appeal had been lodged. The court set out the prerequisites under Order 42 Rule 6 and the principles in Loice Khachendi Onyango v Alex Inyangu & another [2017] eKLR, namely absence of undue delay, substantial loss and security. Observing that the ruling of 22.1.2020 had already pronounced on the issue of status quo and occupation, the court held it could not revisit that issue, found the application unmerited and dismissed it with costs to the plaintiff/respondent. The ruling was delivered electronically pursuant to COVID-19 practice directions, with parties deemed to have waived compliance with Order 21 Rule 1.

Key legal issues

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01

Whether stay of execution pending appeal should be granted

Holding

The application was not merited; the applicant was attempting to re-open the issue of occupation already determined in the ruling of 22.1.2020, and the Order 42 Rule 6 prerequisites were not met

Reasoning

The court noted that the ruling of 22.1.2020 had already pronounced itself on the question of status quo and occupation of the suit land. The stay application effectively sought to set aside the injunctive and inhibition orders already granted, requiring the court to revisit a settled issue. The court declined to delve into the matter again and dismissed the application, awarding costs to the respondent.

p. 2

Legal principles established

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  • Stay of execution pending appeal is discretionary but must be exercised judiciously upon the three prerequisites in Order 42 Rule 6: no undue delay, substantial loss, and security

Court orders

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  1. 1.The application dated 17.2.2020 is dismissed with costs to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c)
  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)(a) & (b)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (1)

  • Loice Khachendi Onyango v Alex Inyangu & another
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 42 Rule 6(2)(a) & (b) 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, "Wilson Kajuki M’Eringa v Martin Gitonga Mugaa (Sued as the Legal Representative of Muga Mugambi – Deceased) [2021] KEELC 4492 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4492/eng@2021-02-03

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