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ELCStruck OutKitale CM ELC No. E004 of 2022 (Appeal)· [2022] KEELC 2876 (KLR)

Family Bank Limited v Guandaru (Environment and Land Appeal E003 of 2022) [2022] KEELC 2876 (KLR)

Environment and Land Court
12 May 2022
FNFred Nyagaka
1,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out Family Bank's stay application because it skipped the required first step of asking the trial court before going on appeal.

What this practically means

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Executive summary

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The Appellant, Family Bank Limited, moved the Environment and Land Court at Kitale by Notice of Motion dated 16/02/2022 seeking a stay of further proceedings in Kitale CM ELC No. E004 of 2022 (Isaack Mathenge Guandaru v Family Bank Limited & another) pending the hearing and determination of its appeal against a Ruling delivered by the trial court on 07/02/2022. The application, supported by an affidavit of Sylvia Wambani, argued that the appeal would be rendered nugatory, that it had high chances of success, that no prejudice would befall the Respondent, and that the application was made without inordinate delay. The Respondent opposed, contending that the trial court had granted only interlocutory orders, that the Applicant's remedy lay in seeking review or discharge of the orders before the trial court, and that the Applicant was estopped from raising new issues on appeal. The Applicant replied that the orders were granted as prayed and that the trial court would be sitting on its own appeal if it proceeded. In disposition, the court held that under Order 42 Rule 6(1) of the Civil Procedure Rules an appeal does not operate as an automatic stay and that an aggrieved party must first apply for stay to the court appealed from; only after that application is granted or refused may the appellate court entertain the matter. The court found the application inchoate and premature, held the requirement was not a mere technicality curable by Article 159(2)(d) of the Constitution, and struck out the application with costs to the Respondent without determining its merits.

Key legal issues

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Whether an application for stay of proceedings could be brought directly to the appellate court without first approaching the trial court

Holding

The application was premature and improperly before the court; Order 42 Rule 6(1) requires the aggrieved party to first move the court appealed from, and the appellate court's jurisdiction is triggered only after such application has been granted or refused by the trial court

Reasoning

Order 42 Rule 6(1) provides that an appeal does not operate as an automatic stay and contemplates that the party first apply to the court appealed from. The court held this step is not a mere technicality curable under Article 159(2)(d). Because the Applicant never sought stay from the trial court, the application was inchoate and incompetent, and the court declined to determine its merits.

p. 4

Legal principles established

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  • Under Order 42 Rule 6(1) of the Civil Procedure Rules, a party seeking stay of proceedings pending appeal must first apply to the court appealed from before invoking the appellate court's jurisdiction.

Court orders

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  1. 1.The Notice of Motion dated 16/02/2022 is struck out with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 43 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi
    [2014] eKLR
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No 43 of 2000
  • Mobile Kitale Service Station v Mobile Oil Kenya Limited and another
    [2004] eKLR
  • St. Patrick Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR
  • Rev Mnadama Evans Okanga Dondo v Housing Finance Company of Kenya
    Nakuru HCCC No. 262 of 2005
On appeal from
Chief Magistrate's Court, Kitale
Kitale CM ELC No. E004 of 2022
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6(1), Order 43 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; Section 13 of the Environment and Land Court Act

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, "Family Bank Limited v Guandaru (Environment and Land Appeal E003 of 2022) [2022] KEELC 2876 (KLR)", Case Analysis (2022). Kitale CM ELC No. E004 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2876/eng@2022-05-12

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