Ghadialy v Maera & another
The bottom line
#Kenya's Environment and Land Court refused to pause execution of a judgment because the losing party had already lost the same stay request at the Court of Appeal.
What this practically means
#Executive summary
#Key legal issues
#Res judicata under Section 7 of the Civil Procedure Act
The application for stay was res judicata because the same applicant had sought and been refused stay by the Court of Appeal in Civil Application No 218 of 2019, dismissed on September 25, 2022
The applicant did not deny or rebut the filing and dismissal of the earlier Court of Appeal application, so those facts were deemed admitted. The court, guided by Mohamed & Another v Haidara and the res judicata dicta in KCB v Benjoh Amalgamated and IEBC v Maina Kiai, held that a court of competent jurisdiction had already adjudicated on stay of the same decree, barring a similar application under Section 7.
Abuse of due process
Reverting to the court of first instance after failing to obtain stay from the Court of Appeal is an abuse of the due process of the court
Order 42 Rule 6(1) contemplates applying first to the court appealed from, then to the appellate court. The applicant did the reverse: having failed before the Court of Appeal, he sought to invite the superior court to upset that decision. The court, citing Muchanga Investments Ltd v Safaris Unlimited on abuse of process, held such conduct legally unacceptable and calculated to bring disrepute to the administration of justice.
Locus standi of incoming advocates after judgment (Order 9 Rules 5, 6 and 9)
The application was filed by a firm not properly on record, without leave or consent, and was therefore taken by a stranger and incompetent
Judgment had been delivered on July 2, 2019 by the firm of Migos Ogamba & Company Advocates, but the application was filed by Migos Ogamba & Waudo Advocates without a notice of change, leave of court, or consent. Under Order 9 Rule 9, a change of advocate after judgment requires a court order or consent. Non-compliance rendered the application premature, incompetent and stillborn.
Substantial loss under Order 42 Rule 6(2)
The applicant failed to prove substantial loss; mere commencement of execution does not amount to substantial loss
The applicant was duty bound to depone to evidence of substantial loss in the supporting affidavit, which cannot rest on inference. The only assertion was inability of the respondent to refund taxed costs. Citing Kenya Shell Ltd v Benjamin Karuga Kibiru, the court held that without evidence of substantial loss no stay can issue, and noted the respondent had previously paid KES 1,000,000 security for costs, showing means.
Legal principles established
#- A party who has sought stay of execution from the Court of Appeal and failed cannot revert to the court of first instance for the same orders; such an application is res judicata and an abuse of due process
- Where judgment has been delivered, a change of advocate requires leave of court or consent under Order 9 Rule 9; process filed by an advocate not properly on record is taken by a stranger
- Substantial loss must be expressly deponed to and proved by evidence; imminent or commenced execution does not by itself constitute substantial loss
Court orders
#- 1.The Application dated the August 23, 2022 be and is hereby Dismissed with costs certified in the sum of Kes 30,000/- only payable to the Plaintiff/Respondent
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (inherent motion jurisdiction under Civil Procedure Rules, Order 42 Rule 6)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ghadialy v Maera & another", Case Analysis (2022). Environment & Land Case 633 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15372/eng@2022-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.