Wanjohi & another v City Council of Nairobi & another (Environment & Land Case E089 of 2021) [2023] KEELC 835 (KLR)
The bottom line
#A Kenyan land court refused to preserve the current position on an Umoja property pending appeal, because the appellants had not moved fast enough on their own appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should exercise its inherent jurisdiction to issue a status quo order preserving the suit property pending appeal
No - the application for status quo was dismissed with costs.
The court acknowledged it possessed inherent powers as a residual source of authority to prevent injustice, but held these must be exercised judicially. It found the appellants had not shown efforts to fast-track the appeal, had already unsuccessfully sought a stay under Order 42 Rule 6, and were now attempting to approach the court through another door, compounded by allegations of criminal conduct in obtaining leave to appeal out of time.
Relevance of Order 9 Rule 9 to the application
Order 9 Rule 9, which relates to post-judgment change of advocates, was inapplicable to the application.
The application was premised on inherent powers under Sections 1A, 1B, 3A and Order 9 Rule 9 and Order 51 Rule 1. The court observed that although the rules were relatable, Order 9 Rule 9 concerns post-judgment change of advocates and had no relevance to an application for status quo pending appeal.
Whether lack of opposition warrants allowing an application
No - the judicial system is a meritocracy and applications are determined on their merits regardless of opposition.
The court dispelled the notion that applications succeed merely because they are unopposed, holding that applications and appeals are heard and determined on their merits. In any event, this application was opposed on allegations of criminal activity and the prior refusal of a stay of execution.
Legal principles established
#- Applications and appeals are determined on their merits even where unopposed; lack of opposition alone does not justify allowing an application
- The court's inherent powers must be exercised judicially and not arbitrarily
Court orders
#- 1.The Notice of Motion dated 21st July 2022 seeking a status quo order pending appeal was dismissed
- 2.Costs of the application to the Respondents (dismissed with costs)
- On appeal from
- Chief Magistrate's Court (Hon LL. Gicheha)
- Not stated
- Jurisdiction invoked
- Inherent powers of the Court under Sections 1A, 1B, 3A of the Civil Procedure Act and Order 9 Rule 9 and Order 51 Rule 1 of the Civil Procedure Rules; appellate jurisdiction under Order 42 (leave to appeal out of time granted by Ruling of 5th May 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjohi & another v City Council of Nairobi & another (Environment & Land Case E089 of 2021) [2023] KEELC 835 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 21st July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/835/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.