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ELCPartially AllowedNyeri ELC No. 601 of 2014· [2022] KEELC 3321 (KLR)

Kanyungu & 5 others; Gichuhi & Mathenge (Suing as Legal Representatives of Philip Gichuhi Mutiga) & another (Intended Defendant) (Environment & Land Case 601 of 2014) [2022] KEELC 3321 (KLR)

Environment and Land Court
16 June 2022
JOJ. O. Olola
2,374 words in judgment
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The bottom line

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The Nyeri Environment and Land Court ordered rent held since 2013 released to the rightful landowners, ruling that filing a Notice of Appeal does not freeze enforcement of a judgment.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nyeri, delivered by J. O. Olola on 16th June 2022, determined an Amended Notice of Motion dated 9th July 2021 and amended on 8th November 2021 brought by the 1st, 3rd, 4th, 6th and Intended 7th and 8th Defendants. The dispute concerned LR No. Nyeri Municipality Block 1/94, which the Court of Appeal in Nyeri Civil Appeal No. 6 of 2017 (Hon. Mwai Kibaki & Others v Mathingira Wholesalers Limited) declared belonged to eight co-owners, overturning the High Court judgment of 12th July 2016. Several co-owners had died during the pendency of the suit, and some had never been enjoined. The Applicants sought joinder of the Intended 7th and 8th Defendants, substitution of the deceased Defendants with their legal representatives, revival of the suit, and release of rent deposited since February 2013 in a joint interest-bearing account in the names of the parties' advocates pursuant to an order of 18th February 2013. The Plaintiff, through its advocate Ms Lucy Waruguru Mwai, opposed only the release of the rent, citing an unresolved issue of lien and a pending appeal against the ruling of Angima J of 10th February 2021 that no retainer existed. The court held that a Notice of Appeal is not a stay, that the Law Firm was not the proper Respondent, and that justice demanded the decree holders not be kept from the fruits of judgment. Allowing the Motion in terms of Prayers 3, 4, 5, 6 and 7, the court made no order as to costs.

Key legal issues

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01

Joinder and substitution of deceased parties and their legal representatives

Holding

Allowed without contest; the Respondent's advocate raised no objection to joinder and revival.

Reasoning

Several of the eight co-owners declared by the Court of Appeal had died during the pendency of the suit. The Applicants sought substitution and joinder to enable all co-owners or their legal representatives to participate in execution of the appellate decree. The Respondent's advocate confirmed awareness of the Court of Appeal judgment and raised no objection to those prayers.

p. 4
02

Release of rent held in the joint advocates' account pending a lien/retainer appeal

Holding

Rent ordered released to the Applicants' Advocates; the pending appeal does not bar enforcement.

Reasoning

The ownership dispute that necessitated the deposit of rent in a joint account was resolved by the Court of Appeal in its judgment of 21st March 2018, which also declared that those who instructed the Respondent firm lacked authority. The rightful shareholders had been kept out of their earnings for over a decade; a Notice of Appeal is not a stay, and the Law Firm has recourse in law against those who purported to instruct it.

p. 5

Legal principles established

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  • A decree holder's right to enjoy the fruits of judgment must not be thwarted; courts should favour enforcement and secure accrued rights.
  • The filing of a Notice of Appeal does not operate as a stay of execution.

Court orders

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  1. 1.The Intended 7th and 8th Defendants enjoined as Defendants in the suit
  2. 2.Substitution of Daniel Githinji for the late Gadson Gitonga (3rd Defendant); Egedious Mwangi Kibera and John Mwangi Kibera for the late Kibera Gatiu; Pauline Wangui Wanyoike and Jane Wanjiku for the late 1st Defendant
  3. 3.Revival of the suit in favour of the 1st, 3rd, 4th, 7th and 8th Defendants/Applicants
  4. 4.Release to the Applicants' Advocates Messrs Kamau Kuria & Company Advocates of the rent held in KCB Nyeri Branch A/C No. 114077xxxx, and payment of that rent into the Applicants' Advocates account with Standard Chartered Bank, Koinange Street Branch No. 010201250xxxx
  5. 5.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 4
  • Constitution of KenyaArticle 10
  • Constitution of KenyaArticle 159(2)(a) & (b)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • Dry Associates Limited v Capital Markets Authority & Another
    (2012) eKLR
  • Republic v Town Clerk of Webuye County Council & Another
    (2014) eKLR
  • Hon. Mwai Kibaki & Others v Mathingira Wholesalers Limited and Others
    Nyeri Court of Appeal Civil Appeal No. 6 of 2017
Jurisdiction invoked
Section 4 of the Appellate Jurisdiction Act (execution of Court of Appeal orders vested in the High Court from which the appeal arose)

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, "Kanyungu & 5 others; Gichuhi & Mathenge (Suing as Legal Representatives of Philip Gichuhi Mutiga) & another (Intended Defendant) (Environment & Land Case 601 of 2014) [2022] KEELC 3321 (KLR)", Case Analysis (2022). Nyeri ELC No. 601 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3321/eng@2022-06-16

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