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ELCAllowedNyeri Civil Appeal (number not stated in judgment)· [2023] KEELC 801 (KLR)

Catholic Archdiocese of Nyeri v Mwangi & another (Environment and Land Appeal E055 of 2021) [2023] KEELC 801 (KLR)

Environment and Land Court
16 February 2023
2,287 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Nyeri stopped execution of an 11-acre land judgment, confirming you can seek a fresh stay on appeal even after failing earlier deadlines.

What this practically means

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Executive summary

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By a notice of motion dated June 16, 2022 under Order 42 rule 6(1) of the Civil Procedure Rules, the Catholic Archdiocese of Nyeri, appellant in an appeal against the judgment of November 23, 2021 in Nyeri MCELC Suit No. 29 of 2018 (Peter Kamau Mwangi v Catholic Archdiocese of Nyeri), sought stay of execution of that judgment and the decree of December 20, 2021, plus leave to deposit Kshs.540,000/- in court within 30 days as security. The lower court had, by ruling of April 12, 2022, granted conditional stay requiring deposit of that sum in a joint interest-earning account within 30 days; the appellant failed to comply within the period, citing internal bureaucratic processes in raising the funds, and later found the respondents unwilling to open the joint account. Both respondents opposed, terming the application res judicata, an abuse of process, and an afterthought brought after inordinate delay. Justice J. O. Olola held that under Order 42 rule 6(1) the appellate court may entertain a stay application whether or not one was granted or refused below, and that the appellant had reserved the right to seek stay on appeal, so the motion was not res judicata. The roughly one-month lapse after expiry of the compliance period was not inordinate delay. Finding that transfer of the 11-acre suit property would cause the appellant substantial loss and that it was willing to provide security, the court allowed the motion in terms of prayers 3 and 4, with costs in the appeal.

Key legal issues

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01

Res judicata and abuse of process

Holding

The application was not res judicata the lower court's ruling because the appellant had, by its memorandum of appeal, reserved the right to seek stay from the appellate court

Reasoning

Order 42 rule 6(1) expressly permits the court to which an appeal is preferred to consider a stay application regardless of whether the court appealed from granted or refused one. The appellant's memorandum of appeal dated December 23, 2021 reserved the right to seek stay pending appeal, so the court found it had jurisdiction and was not persuaded the motion was res judicata or an abuse of process.

p. 4
02

Unreasonable delay

Holding

The application was not filed after inordinate delay

Reasoning

The original stay application was filed within a month of judgment, but the ruling on it came only on April 12, 2022, giving the appellant 30 days to deposit Kshs.540,000/-. The present application was filed about a month after that deadline lapsed. The court found no inordinate delay, accepting the appellant's explanation of bureaucratic delays in raising the funds.

p. 4
03

Substantial loss and security

Holding

The appellant stood to suffer substantial loss and was ready and willing to provide security, justifying stay

Reasoning

The effect of the judgment would be transfer of an 11-acre suit property to the 1st Respondent, who intended to sub-divide and distribute it to siblings, likely placing it beyond the appellant's reach and rendering the appeal nugatory. The court was also satisfied that the appellant, though it missed the original deadline, was ready and willing to comply with such security terms as the court would impose.

p. 5

Legal principles established

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  • Whether stay has been granted or refused below, the appellate court may still consider a fresh application for stay and make such order as seems just
  • Purpose of stay of execution pending appeal is preservation of the subject matter so the appeal is not rendered nugatory, balanced against the successful litigant's right to the fruits of judgment

Court orders

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  1. 1.Stay of execution of the Judgment delivered on 23rd November, 2021 and the Decree issued on 20th December, 2021 in Nyeri MCELC Suit No. 29 of 2018 pending the hearing and determination of the Appeal
  2. 2.Leave granted to the Defendant/Appellant to deposit in Court the sum of Kshs.540,000/- within 30 days as security pending the hearing and determination of the Appeal
  3. 3.Costs of the application to be in the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (1)

  • RWW -vs- EKW
    (2019) eKLR
On appeal from
Chief Magistrate's Court at Nyeri (MCELC)
Nyeri MCELC Suit No. 29 of 2018
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Catholic Archdiocese of Nyeri v Mwangi & another (Environment and Land Appeal E055 of 2021) [2023] KEELC 801 (KLR)", Case Analysis (2023). Nyeri Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/801/eng@2023-02-16

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