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ELCDismissedNot stated in the judgment (arising from Nanyuki CMCCC No. 36 of 2019)· [2022] KEELC 1381 (KLR)

Sabasky Mithamo & 3others v Stephen Mukono Mambo & 3 others [2022] KEELC 1381 (KLR)

Not expressly stated in the judgment (an appellate court sitting at Nanyuki)
14 February 2022
KBK. Bor
1,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nanyuki court refused to block water connection pending appeal because the applicants showed no real loss they could not fix later.

What this practically means

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Executive summary

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The Appellants, apparently members of the Ngare Ndare Water Project, applied by a notice of motion dated 29/11/2021 for a stay of execution of the judgment of V. M. Masivo, Resident Magistrate, in Nanyuki CMCCC No. 36 of 2019, alternatively that the status quo be maintained so that the 1st Respondent remains unconnected with water from the project. Their case was that the Magistrate had ordered water connected to plot 899, which they contended belonged to Silas Mburugu Mucena and not the 1st Respondent, and that connection would render their appeal nugatory. The 1st Respondent, Stephen Mukono Mambo, opposed the application, asserting that a similar application had been dismissed by the trial court and that the decree had already been executed, water having been connected to his plot number 894, which was not the subject of the suit or the appeal. The 1st Respondent also objected that the Appellants' advocate was not properly on record under Order 9 Rule 9 of the Civil Procedure Rules. The court held that Order 9 Rule 9 does not expressly apply to appeals and rejected that objection. On the stay, the court found no substantial or irreparable loss demonstrated: if the appeal succeeds the water can be disconnected and may serve the actual owner of the disputed plot. The application dated 29/11/2021 was declined, with costs awarded to the 1st Respondent. Judgment was delivered virtually at Nanyuki on 14 February 2022 by K. Bor, Judge.

Key legal issues

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01

Whether the incoming advocate was properly on record

Holding

The objection under Order 9 Rule 9 fails because the rule does not expressly extend to appeals; M.G. Kaume & Company Advocates was properly on record.

Reasoning

Order 9 Rule 9 requires a party changing advocates after judgment to obtain a court order or file a consent. The Memorandum of Appeal was filed by Goko Gichuhi & Co Advocates and M.G. Kaume & Company Advocates filed a Notice of Change on 25/11/2021. However, the court held the rule does not expressly state that it applies to appeals, so the objection was misplaced.

02

Whether the conditions for stay of execution under Order 42 Rule 6(2) were met

Holding

The Appellants failed to demonstrate substantial loss or that the appeal would be rendered nugatory.

Reasoning

The dispute concerned connection of water to plot 899. The 1st Respondent had already been connected to plot 894, which was neither the subject of the suit nor of the appeal. No irreparable loss was shown; if the appeal succeeds, the water can be disconnected or serve the actual owner of the disputed plot.

p. 2

Legal principles established

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  • Order 9 Rule 9 of the Civil Procedure Rules, governing change of advocates after judgment, does not expressly apply to appeals
  • An applicant for stay of execution must demonstrate substantial loss, timeliness, and offer security under Order 42 Rule 6(2)

Court orders

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  1. 1.The application dated 29/11/2021 is declined/dismissed
  2. 2.The 1st Respondent is awarded the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6(2)
On appeal from
Magistrate's Court, Nanyuki
Nanyuki CMCCC No. 36 of 2019
Jurisdiction invoked
Appellate jurisdiction over a subordinate court decision, invoking Order 42 Rule 6(2) of the Civil Procedure Rules for stay of execution pending appeal

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, "Sabasky Mithamo & 3others v Stephen Mukono Mambo & 3 others [2022] KEELC 1381 (KLR)", Case Analysis (2022). Not stated in the judgment (arising from Nanyuki CMCCC No. 36 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1381/eng@2022-02-14

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