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ELCDismissedELC Appeal Case No. E015 of 2021· [2022] KEELC 462 (KLR)

Veronicah Mengich & another v Board of Management, Koroto Primary School [2022] KEELC 462 (KLR)

Environment and Land Court
20 April 2022
EOE. Obaga
525 words in judgment
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The bottom line

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The Environment and Land Court refused to stay an exhumation order because the exhumation had already happened, and courts cannot grant orders in vain.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a Notice of Motion dated 8th April 2021 by the Applicants, Veronicah Mengich Alias Kobilо Ruto and Kimator Ruto, seeking a stay of execution of the ruling of Mr. Biwott SPM delivered on 7th April 2021 in Kabarnet SPM ELC 11 of 2021. That ruling allowed the Respondent's application for exhumation of the remains of Paul Kipchabas Ruto from the suit property. The Applicants filed an appeal against the ruling and sought a stay, contending that if the exhumation proceeded, the appeal would be rendered nugatory. The Respondent opposed through a replying affidavit sworn on 26th April 2021, contending that the exhumation had already been carried out in accordance with the court order and that the court cannot issue orders in vain. Both parties filed written submissions. The court framed a single issue: whether the Applicants were entitled to a stay of execution. Noting that the appeal was against an interlocutory application, that the fact of the exhumation was not denied, and that the Applicants' submissions addressed the main appeal rather than stay, the court held that it could not grant orders in vain. It found the application spent and dismissed it with no order as to costs. Further, holding that an appeal from the Kabarnet Senior Principal Magistrates Court should be heard at Iten, the court transferred the appeal to the Iten ELC court for directions on its disposal.

Key legal issues

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Whether stay of execution of the exhumation order should be granted pending appeal

Holding

The application was dismissed as spent because the exhumation had already been effected and there was nothing to stay

Reasoning

The appeal was against an interlocutory ruling allowing exhumation of remains from the suit property. The Respondent deponed, and it was not denied, that the exhumation had already been carried out. Granting a stay would be an exercise in futility. The Applicants' submissions addressed the main appeal and not stay. The court accordingly found the application overtaken by events and dismissed it, transferring the appeal to Iten for directions.

p. 2

Legal principles established

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  • A court cannot grant a stay of execution where the order sought to be stayed has already been executed and there is nothing left to stay.

Court orders

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  1. 1.The Applicants' Notice of Motion dated 8th April 2021 seeking stay of execution is dismissed
  2. 2.No order as to costs
  3. 3.The appeal is transferred to Iten ELC court for directions on disposal of the appeal
On appeal from
Kabarnet Senior Principal Magistrates Court
Kabarnet SPM ELC 11 of 2021
Jurisdiction invoked
Appellate and supervisory jurisdiction of the Environment and Land Court over subordinate courts in land matters

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, "Veronicah Mengich & another v Board of Management, Koroto Primary School [2022] KEELC 462 (KLR)", Case Analysis (2022). ELC Appeal Case No. E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/462/eng@2022-04-20

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