Robert Mwisani Lumadede & another v Philemon Omwenga Aroni [2022] KEELC 697 (KLR)
The bottom line
#A Nakuru court paused execution of a land judgment pending appeal, but only after the appellants proved long occupation and agreed to deposit Kshs. 100,000 as security.
What this practically means
#Executive summary
#Key legal issues
#Whether there is a competent appeal on record
There is a competent appeal because the Memorandum of Appeal was filed within 28 days of judgment, within the statutory period.
The Respondent relied on a Notice of Appeal stamped 9th July 2021, filed 48 days after judgment. However, the court identified a Memorandum of Appeal bearing a court stamp dated 18th June 2021, being 28 days from judgment, which is within time. The Respondent's objection rested on a misapprehension of facts, and the appeal was therefore properly on record.
Whether the criteria for stay of execution pending appeal were met
The criteria in Order 42 rule 6(2) were satisfied: no unreasonable delay, and substantial loss shown since the Applicant who has been in occupation for 48 years faces eviction.
The application was filed on 31st May 2021, ten days after the judgment, so there was no delay. The uncontroverted averment of 48 years' occupation led the court to deduce that the Applicant faces eviction if stay is not granted, occasioning substantial loss and rendering the appeal nugatory. Security was ordered at Kshs. 100,000 to be deposited in court within 60 days.
Whether the court can stay or grant injunctions in respect of ELC 10 of 2019
The court declined to grant stay of proceedings or injunction in respect of ELC 10 of 2019 because that suit is before the Environment and Land Court, which can grant those orders.
Relying on Nation Media Group v Pattni, the court held that one division of the High Court has no powers superior to another division. The orders sought in respect of ELC 10 of 2019 can be granted by the Environment and Land Court at Nakuru before which the suit is listed, hence this court declined to grant them.
Whether the application anchored on wrong provisions should be dismissed
The court invoked Article 159 of the Constitution and determined the application on its substance notwithstanding that it was anchored on the wrong provisions of law.
The application was brought under Sections 1A, 1B, 3A and 6 of the Civil Procedure Act rather than Order 42 rule 6. The court noted the misalignment but, in the interest of substantive justice under Article 159, proceeded to determine it on its merits rather than dismissing it on a technicality.
Legal principles established
#- The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while balancing the decree holder's rights.
- Substantial loss is the cornerstone of an application for stay; it is what has to be prevented by preserving the status quo.
Court orders
#- 1.There shall be an order of stay of execution of the Judgment and order made in Nakuru Chief Magistrates Court Case No.73 of 2019 on 21 May, 2021 by Honourable Benjamin Limo pending the hearing and determination of the Applicant's Appeal.
- 2.The Appellant shall furnish security of Kshs. 100,000 for performance of the decree, to be deposited in court within 60 days.
- 3.In the event of failure to comply with the security order, the stay of execution shall stand vacated.
- 4.The costs of the application shall be in the Appeal.
- On appeal from
- Chief Magistrate's Court Nakuru
- CM ELC No. 73 of 2019
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 6 of the Civil Procedure Act; Order 42 rule 6 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Mwisani Lumadede & another v Philemon Omwenga Aroni [2022] KEELC 697 (KLR)", Case Analysis (2022). ELC 10 of 2019 (Application dated 31st May, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/697/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.