Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedVoi Civil Appeal No. 8 of 2019 (transferred to the Environment & Land Court)· [2022] KEELC 1098 (KLR)

Hezekiah Macharia Wanyoike & another v Kenya Medical Research Institute & another [2022] KEELC 1098 (KLR)

Environment and Land Court
21 February 2022
4,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause a land case judgment because the applicants waited two years, showed no real loss, and there was nothing to stay.

What this practically means

#

Executive summary

#
The Appellants/Applicants, Hezekiah Macharia Wanyioke and another, moved the Environment and Land Court by Notice of Motion dated 27th September 2021 under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of the judgment of the Taveta Principal Magistrate's Court in Civil Case No. 22 of 2015 delivered on 1st February 2019 by Hon. Benson S. Khapoya, pending hearing of their appeal. The appeal, initially lodged at the Voi High Court as Civil Appeal No. 8 of 2019, was transferred to the Environment and Land Court on 6th April 2020 for want of jurisdiction. The 1st and 2nd Respondents opposed through grounds of contention that the trial court merely dismissed the suit with costs - a negative order with nothing capable of being stayed - and that the application was filed after an inordinate two-year delay. The 1st Respondent relied on the authority of Catherine Njeri Maraga v Serah Chege & Another (2017) eKLR. Framing three issues, the court found the Applicants failed to establish substantial loss, having adduced no documentary evidence beyond letters of allotment and a gazette notice; that the two-year delay was wishy-washy, not convincing and inexcusable; and that their conditional undertaking as to security betrayed no commitment. Concurring that there was nothing to execute since no decree had been extracted from the negative judgment, the court dismissed the application with costs, directed that the appeal be heard and disposed of within ninety days, and scheduled a mention for directions under Section 79B of the Civil Procedure Act.

Key legal issues

#
01

Substantial loss

Holding

The Applicants failed to demonstrate substantial loss; bare claims of construction and farming on the land were too circumstantial without empirical documentary evidence

Reasoning

The court found that assertions that the Applicants had built a house, carried out dairy farming and business on the land lacked documentary backing such as photographs, receipts or structural designs. Letters of allotment and a gazette notice did not prove they would suffer substantial loss if the judgment were executed.

p. 4
02

Inordinate delay

Holding

The application filed on 27th September, 2021, some two years after the judgment of 1st February, 2019, was inordinate and inexcusable

Reasoning

The court rejected the three explanations offered - the Respondents' alleged invasion of the land on 17th August 2021, the lethargy of previous advocates, and the delay in transferring the file from Voi High Court - as wishy-washy and unconvincing, holding that an applicant must move court promptly from the date of judgment.

p. 5
03

Security for costs

Holding

The Applicants' conditional and casual undertaking as to security betrayed no commitment, and offering the disputed land as security was unconvincing since ownership of the land was itself the dispute

Reasoning

The court held that the Applicants had casually and conditionally offered security only if the orders were granted. Because the suit land's ownership was the very subject of the appeal, apportioning the land as security was unconvincing, and this ingredient also failed.

p. 5
04

Nothing capable of being stayed

Holding

The trial court's judgment merely dismissed the suit with costs, no decree was extracted, and no execution had taken place, so there was nothing to stay

Reasoning

Concurring with the 1st Respondent's counsel and the authority of Catherine Njeri Maraga v Serah Chege & Another, the court held that a dismissal with costs is a negative order; the only possible execution would be as to costs, and no decree had been extracted since the judgment of 1st February 2019.

Legal principles established

#
  • For a stay of execution pending appeal to issue, the applicant must establish sufficient cause, substantial loss, that the application was made without inordinate delay, and furnish security
  • There is nothing to stay where the trial court merely dismissed the suit with costs, as the only thing executable is costs

Court orders

#
  1. 1.THAT the Notice of Motion application dated 27th September, 2021 is hereby dismissed
  2. 2.THAT for expediency sake the Appeal to be heard and finally disposed off within the next ninety (90) days from the day of this ruling
  3. 3.THAT the matter to be mention on 5th April, 2022 for purposes of taking directions of the filed appeal under the Provisions of Section 79B of the Civil Procedure Act Cap. 21 and Order 42 Rules 11 of the Civil Procedure Rules 2010
  4. 4.THAT the costs of the Notice of Motion application to be borne by the Appellants/Applicants to the 1st Respondent

Authorities

#

Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 27(1), 79B
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and 6(6), Order 42 Rule 11, Order 51 Rule 1

Cases cited (9)

  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR, Civil Appeal No. 107 of 2015
  • Halal & Another v Thornton & Turpin Limited
  • Vishram Rouji Halal v Thornton & Turpur
    Civil Appeal No. 15 of [1990] KLR 365
  • Hassan Guyo Wakolo v Straman E.A. Ltd.
    [2013]
  • Canvass Manufacturers Limited v Stephen Reuben Korunditu
    Civil Application No. 158 of 1994 [1994] LLR 4853
  • Stephen Wanjohi v Central Glass Industries Ltd.
    NBI HCC No. 6726 of 1991
  • Consolidated Marine v Namprijad & Co.
    Civil Appeal No. 93 of 1989 Nairobi
  • Catherine Njeri Maraga v Serah Chege & Another
    (2017) eKLR
  • Benard Njroge Kibaki t/a Njowa Njemu Enterprises v Equity Bank Limited And Another
    (2020) eKLR
On appeal from
Taveta Principal Magistrate's Court
Civil Case No. 22 of 2015
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hezekiah Macharia Wanyoike & another v Kenya Medical Research Institute & another [2022] KEELC 1098 (KLR)", Case Analysis (2022). Voi Civil Appeal No. 8 of 2019 (transferred to the Environment & Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1098/eng@2022-02-21

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