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ELCDismissedEnvironment & Land Case 73 of 2011· [2022] KEELC 15048 (KLR)

Ndereba v Mbijiwe & 5 others

Environment and Land Court
23 November 2022
CNCK NZILI
782 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to extend an expired stay of execution, ruling it had no power to do so and the applicants hid a parallel appeal court application.

What this practically means

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Executive summary

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This is a ruling by CK Nzili, J of the Environment and Land Court at Meru on the defendants'/applicants' application dated August 23, 2022 seeking a stay of execution of the judgment delivered on July 20, 2022 for 60 days pending hearing of their appeal. The plaintiff/respondent opposed the application as misconceived and an abuse of process, pointing out that a 30-day stay had already been granted on July 20, 2022 and had expired, and that the applicants had filed a similar stay application at the Court of Appeal at Nyeri on August 5, 2022, which was pending determination. The court restated the conditions for stay of execution pending appeal: demonstration of substantial loss, offer of security, timeliness and the interest of justice, drawing on Butt v Rent Restriction Tribunal, James Wangalwa v Agnes Naliaka Cheseto and related authorities. It observed that execution is a lawful process not amounting to substantial loss by itself, and that the legal burden lay on the applicants to prove the appeal would be rendered nugatory. The court found the applicants had not denied the pending Court of Appeal application and had failed to disclose it when filing this application. Following the Supreme Court's decision in George Boniface Mbugua, it held that any remarks would amount to premature comments on issues pending before the appellate court. Concluding that, the 30-day stay having expired on August 20, 2022 without an extension of time, the court had become functus officio, the application was dismissed with costs.

Key legal issues

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01

Entitlement to stay of execution pending appeal

Holding

The applicants failed to discharge the burden of demonstrating substantial loss and that the appeal would be rendered nugatory

Reasoning

The court restated the settled conditions for stay: substantial loss, security, timeliness and the interest of justice. Execution is a lawful process that does not by itself constitute substantial loss; the applicants had to show irreparable harm to the essential core of their position as intending appellants, which they did not demonstrate.

p. 2
02

Functus officio and duplicity of stay applications

Holding

Having granted a 30-day stay that expired on August 20, 2022, the court became functus officio and could not extend or grant a fresh stay, especially with a similar application pending before the Court of Appeal

Reasoning

The applicants did not deny a pending stay application filed at the Court of Appeal on August 5, 2022, and failed to disclose it when filing this application on August 23, 2022. Following the Supreme Court's guidance, any remarks would amount to premature comments on issues pending before the appellate court.

p. 2

Legal principles established

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  • A party seeking stay of execution pending appeal must demonstrate substantial loss, offer security, file the application timeously and show it is in the interest of justice
  • Once a court grants a stay for a fixed period and it expires without an extension of time, the court becomes functus officio

Court orders

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  1. 1.The application dated August 23, 2022 for stay of execution is dismissed with costs

Authorities

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Cases cited (6)

  • Mucheru & 2 others vs Katiba Institute & 2 others
    (Civil Appeal E373 of 2021) (2022) KECA 3 & 6 (KLR) (4th March 2022) Ruling

    Stay declined where orders sought would be in vain and application brought too late

  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417

    Discretion to stay a decree where special circumstances and unique requirements are demonstrated

  • Kinyanjuri Muguta vs Wotaka Muguta
    (2018) eKLR

    It is not enough to merely state substantial loss without demonstrating it

  • James Wangalwa & another vs Agnes Naliaka Cheseto
    (2012) eKLR

    Execution is a legal process and does not by itself amount to substantial loss

  • Gitahi & another vs Warugongo
    (1988) eKLR

    Court must preserve the rights of both parties pending appeal and act even-handedly

  • George Boniface Mbugua vs Mohamed Jawayd Igbal (Personal Representative of the Estate of the late Ghulam Rasool Jammohamed)
    (2021) eKLR

    Remarks on matters pending before another court amount to premature comments

Jurisdiction invoked
Inherent jurisdiction to grant stay of execution pending appeal (order sought under the court's discretion; no specific provision cited in the ruling)

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, "Ndereba v Mbijiwe & 5 others", Case Analysis (2022). Environment & Land Case 73 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15048/eng@2022-11-23

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