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ELCDismissedNot stated on the face of the judgment (appeal from Butali SPM MCL & E No. 39 of 2019, Kakamega)· [2023] KEELC 26 (KLR)

Shikhutuli v Murunga & another (Environment and Land Appeal E1 of 2021) [2023] KEELC 26 (KLR)

Environment and Land Court
17 January 2023
DOD. O. Ohungo
2,234 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to pause a land case because the rival succession application had been filed later and left idle for a year.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the ruling of Hon. Z J Nyakundi, Senior Principal Magistrate, delivered on 3rd December 2020 in Butali SPM MCL & E No. 39 of 2019, dismissing the appellant's Notice of Motion dated 2nd November 2020. The motion had sought a stay of the land eviction suit pending the hearing and determination of the appellant's summons for revocation of grant filed on 22nd January 2020 in Butali SPM Succession Cause No. 246 of 2018, a cause in which the respondents obtained a certificate of confirmation of grant over, inter alia, parcel North Kabras/Matsakha/848, where the appellant claimed an heir's interest. The appeal was canvassed by written submissions. The appellant relied on Sections 6 and 34 of the Civil Procedure Act and Section 13(7) of the Environment and Land Court Act, arguing that the succession proceedings should precede the land suit. The respondents contended that stay is granted only in exceptional circumstances and that the appellant had done nothing to prosecute his revocation summons, seeking only delay. The court framed a single issue: whether the application was merited. Applying the settled principles against interference with discretionary decisions, it held that stay of proceedings is a grave measure threatening access to justice; that the appellant, as the applicant in the revocation summons, was in the driver's seat and had failed to explain a year of inaction; and that Section 6 did not apply because the land suit (filed 30th August 2019) predated the revocation summons (filed January 2020). The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the trial magistrate erred in declining to stay proceedings in Butali SPM MCL & E No. 39 of 2019 pending determination of the summons for revocation of grant in Butali PM Succession Cause No. 246 of 2018

Holding

The appeal was dismissed; the magistrate's exercise of discretion disclosed no misdirection or wrong conclusion warranting interference.

Reasoning

The court applied the settled principles on appellate interference with discretionary decisions. It found that stay of proceedings is a grave measure that interferes with access to justice. The appellant, who bore the duty to prosecute his revocation application, had let it languish for a year. Further, Section 6 of the Civil Procedure Act was inapplicable because the land suit was filed in August 2019, before the January 2020 summons for revocation of grant on which the stay was grounded.

p. 4
02

Whether Section 6 of the Civil Procedure Act mandated a stay

Holding

Section 6 did not apply because the case sought to be stayed was instituted before the proceeding cited as the basis for the stay.

Reasoning

The appellant grounded the stay specifically on his summons for revocation of grant dated 22nd January 2020, not on the succession cause as a whole. Since the plaint in the land suit was filed on 30th August 2019, it predated the summons. The previously instituted proceeding requirement in Section 6 was therefore not satisfied.

p. 4

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong due to misdirection or because it has acted on matters on which it should not have acted or failed to consider matters it should have considered.
  • Stay of proceedings is a grave judicial action which seriously interferes with a litigant's right to conduct litigation and the right of access to justice.
  • Section 6 of the Civil Procedure Act applies only where the previously instituted suit or proceeding predates the case sought to be stayed.

Court orders

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  1. 1.The appeal was dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 34
  • Environment and Land Court ActSection 13(7)

Cases cited (5)

  • Benson Mathu Wakaba & 2 others –vs- Doris Kigetu Maingi
    [2022] eKLR
  • Wycliffe Oparanya Ambetsa –v- Director of Public Prosecution
    [2017] eKLR
  • Mombasa Cement Limited v Kitsao & 34 others
    (Civil Appeal E016 of 2020) [2022] KECA 562 (KLR)
  • Kenya Wildlife Service –vs- James Mutembei
    [2019] eKLR
  • David Morton Silverstein vs. Atsango Chesoni
    [2002] eKLR
On appeal from
Subordinate Court (Butali)
Butali SPM MCL & E No. 39 of 2019
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act (appellant also relied on Section 13(7) 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, "Shikhutuli v Murunga & another (Environment and Land Appeal E1 of 2021) [2023] KEELC 26 (KLR)", Case Analysis (2023). Not stated on the face of the judgment (appeal from Butali SPM MCL & E No. 39 of 2019, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/26/eng@2023-01-17

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