Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (application dated 29.12.2021)· [2022] KEELC 2663 (KLR)

GILBERT KIOGORA M’MWIRICHIA v JUDSON MWENDA GITUNGA & another

Environment and Land Court
6 July 2022
CNC.K. Nzili
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause execution of a land judgment because the person seeking the pause had no pending or properly grounded appeal — nothing existed to stay.

What this practically means

#

Executive summary

#
The 1st interested party applied by notice of motion dated 29.12.2021 for stay of execution of the judgment and decree made on 20.12.2021 in this appeal (from Nkubu PMCC No. 95 of 2015), pending his intended appeal to the Court of Appeal. He claimed to be a bona fide purchaser of 3 acres forming part of L.R Abogeta/U-Kithangari/2734, bought from the appellant for Kshs.3.6m, occupied and developed since 2016, and asserted his issues were not addressed in the judgment, that he would suffer irreparable loss, and that there was no delay in filing. The respondent opposed, arguing there was no positive order capable of being stayed since the appeal was dismissed, Order 42 Rule 6 was inapplicable to an interested party, no orders had been sought against the interested party, and the respondent had taken vacant possession and obtained a title. The appellant opposed the application, having withdrawn the notice of appeal filed without his instructions. The court framed two issues: whether a case for stay was made, and whether the interested party had a pending appeal. Relying on TSC v Knut and Okiya Omtata Okoiti, it held a pending or intended appeal is a prerequisite for stay. The interested party, though joined by ruling of 27.11.2019, never filed a cross-appeal or pleaded grounds or specific prayers; issues flow from pleadings (IEBC v Stephen Mutinda Mule), and an adversarial court adjudicates only matters raised by parties (Basu Mining/Cortec). The appeal having been dismissed with no positive orders, and no draft memorandum of appeal exhibited, there was nothing to stay. The application was dismissed with costs on 6 July 2022 (C.K. Nzili, ELC Judge).

Key legal issues

#
01

Whether stay of execution can issue to an interested party with no pending appeal

Holding

Stay was refused because the interested party had no pending or properly grounded appeal and there was no positive order capable of being stayed

Reasoning

Order 42 Rule 6 requires sufficient cause and an appeal as substratum. The interested party, though joined, never filed a cross-appeal or sought specific prayers, and the appellant's appeal was dismissed with no positive orders. Without a draft memorandum of appeal showing intended grounds, the court found nothing to stay.

p. 3
02

Locus standi of the interested party to seek stay

Holding

The court found the interested party had not defined his issues or sought specific prayers in the appeal despite being joined

Reasoning

The interested party was joined by ruling dated 27.11.2019 and his file was to be considered alongside the appeal, but he pleaded no grounds of appeal and sought no relief. In an adversarial system parties set the agenda; adjudicating unpleaded matters would be speculative.

p. 3

Legal principles established

#
  • There must be an existence of a pending or intended appeal as a basis for the court to entertain an application for stay of execution
  • Parties are bound by their pleadings and issues flow from pleadings; a court adjudicates only on matters raised by parties

Court orders

#
  1. 1.The application dated 29.12.2021 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (10)

  • George Ole Sangui and 12 others vs Kedong Ranch Ltd
    [2015] eKLR
  • David Kiprute Chingi & another vs D.P.P and 2 others
    [2016] eKLR
  • Western College of Arts and Applied Sciences v Vonaga & others
    [1976] KLR 63
  • Donald Oyatsi vs Disciplinary Ethics Committee & 3 others
    [2021] eKLR
  • Gilbert Kimani Nyumu vs Gedion Kipkoech Kiptisia
    [2020] eKLR
  • Heshimart enterprises vs Kenya Women Microfinance Bank Ltd
    [2021] eKLR
  • TSC v Knut & 3 others
    [2015] eKLR
  • Okiya Omtata Okoiti v Central Bank of Kenya and 7 others
    [2019] eKLR
  • IEBC v Stephen Mutinda Mule
    [2013] eKLR
  • Basu Mining Ltd vs Commissioner of Mines and another; Cortec mining (K) Ltd & 5 others (I.P)
    Civil Appeal 187 of (2016) [2021] KECA 175 (KLR)
On appeal from
Principal Magistrate's Court, Nkubu
Nkubu PMCC No. 95 of 2015
Jurisdiction invoked
Order 42 Rule 6 Civil Procedure Rules (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "GILBERT KIOGORA M’MWIRICHIA v JUDSON MWENDA GITUNGA & another", Case Analysis (2022). Not stated in judgment (application dated 29.12.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2663/eng@2022-07-06

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