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ELCDismissedNot stated in judgment (Notice of Motion dated October 15, 2021)· [2022] KEELC 3665 (KLR)

Tonui v Chepngetich & another (Environment & Land Case 227 of 2001) [2022] KEELC 3665 (KLR)

Environment and Land Court
21 July 2022
OAO. A. Angote
1,261 words in judgment
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The bottom line

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The Environment and Land Court dismissed a daughter's attempt to halt execution of a land judgment because she had no legal authority to act for her mother.

What this practically means

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Executive summary

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The 2nd Defendant, through her daughter Sella Wanjiku Wambugu, moved the court by Notice of Motion dated October 15, 2021 seeking stay of execution of the judgment and decree delivered by Obaga J. on October 31, 2019 in favour of the Plaintif, pending an intended appeal. The Applicant deponed that the 2nd Defendant suffers senility and dementia, is not competent to swear an affidavit, and that a Mental Health Act application for guardianship was intended. The Plaintif opposed the application, pointing out that the Notice of Appeal filed on November 28, 2019 was out of time, no Record of Appeal was filed, no medical evidence of incapacity was produced, and there was inordinate delay of about two years in bringing the application, plus no offer of security. The court framed a single issue: whether stay of execution pending the intended appeal should be granted. Applying Order 42 rule 6 of the Civil Procedure Rules and the Halai v Thornton & Turpin conditions, the court first found that Ms. Sella Wanjiku, not being a party and not having been appointed guardian under Section 26 of the Mental Health Act, lacked locus standi to make the application. The court further held that even absent that defect, the application failed for lack of proof of a valid appeal and for inordinate delay, having been filed two years after judgment. The application was dismissed with no order as to costs and the file marked as closed, save for the execution process.

Key legal issues

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Whether stay of execution pending intended appeal should be granted

Holding

Application dismissed; the Applicant lacked locus standi and the application was filed after inordinate delay and without proof of a valid appeal

Reasoning

Order 42 rule 6 requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security be given. The application was brought by a non-party not appointed guardian under the Mental Health Act, hence lacking locus standi. It was also filed two years after the judgment, and the Notice of Appeal was itself filed out of time with no Record of Appeal, so there was no valid appeal to support a stay.

p. 3

Legal principles established

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  • A person who has not been declared guardian of a party under Section 26 of the Mental Health Act lacks locus standi to make applications on that party's behalf
  • An application for stay of execution must be made without unreasonable delay and must be supported by a valid appeal

Court orders

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  1. 1.The application dated 15th October 2021 is dismissed
  2. 2.No order as to costs
  3. 3.The file is marked as closed (other than the execution process)

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Mental Health ActSection 26

Cases cited (1)

  • Halai & another v Thornton & Turpin (1963) Ltd
    [1990] eKLR
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules - stay of execution pending intended 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, "Tonui v Chepngetich & another (Environment & Land Case 227 of 2001) [2022] KEELC 3665 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated October 15, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3665/eng@2022-07-21

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