Kalume Karisa Mbitha v Bromine Investment & 5 others [2021] KEELC 4589 (KLR)
The bottom line
#The Environment and Land Court in Malindi refused to pause eviction proceedings because the case repeated claims a higher court had already settled.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
The court found no basis to grant the stay because the suit itself was an abuse of process and the intended appeal targeted issues already conclusively determined by the Court of Appeal.
The court set out the twin requirements of substantial loss without unreasonable delay and security. It then examined the history: the Plaintiff had litigated the same subject matter in HCCC No. 606 of 2001 before Mwera J, lost, lost the appeal in Malindi Civil Appeal No. 26 of 2013, and then filed the present suit. The court held the present suit was abusive, so stay would subvert the Court of Appeal's final decree.
Whether the court should protect its process from abuse in considering interlocutory relief
The court held it has a duty to protect its processes from abuse and declined stay on that basis.
The Defendant argued that granting stay would conflict with the final decree in HCCC No. 606 of 2001 as upheld by the Court of Appeal directing eviction and demolition. The court agreed that granting stay on the pretext of a pending appeal would amount to overturning the appellate decision, a judicial absurdity, and declined to lend its discretionary process to that outcome.
Legal principles established
#- A court will not grant a stay of execution where doing so would effectively overturn a final decision of a superior court between the same parties, as such an order leads to judicial absurdity.
Court orders
#- 1.The application dated 19th May 2020 is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Inherent jurisdiction and Order 42 Rule 6(2) of the Civil Procedure Rules on stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalume Karisa Mbitha v Bromine Investment & 5 others [2021] KEELC 4589 (KLR)", Case Analysis (2021). (not stated in excerpt; Malindi Environment and Land Court suit arising from Judgment of 6th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4589/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.