Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Notice of Motion dated 21st July 2022)· [2023] KEELC 835 (KLR)

Wanjohi & another v City Council of Nairobi & another (Environment & Land Case E089 of 2021) [2023] KEELC 835 (KLR)

Environment and Land Court (Judge sitting in appellate capacity over a Chief Magistrate's judgment - exact court not stated in the judgment)
16 February 2023
1,529 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
This ruling of Judge Judy Omange, delivered via Microsoft Teams on 16 February 2023, determines a Notice of Motion dated 21 July 2022 in which the Appellants, who had been granted leave on 5 May 2022 to appeal out of time against a judgment of Hon LL. Gicheha, Chief Magistrate, of 30 July 2021 over Nairobi/Umoja Block 83/14/438, sought an order of status quo preserving the prevailing position on the suit property pending the hearing of the appeal. The 2nd Respondent, in whose favour the Chief Magistrate had entered judgment ordering the Appellants to vacate within 60 days, opposed the application, alleging that court proceedings were stolen to justify the out-of-time appeal, that the Appellants were in criminal trespass since 6 May 2022, and claiming daily damages of Kshs 20,000. The court framed a single issue: whether a status quo order should issue pending the appeal. Relying on the Court of Appeal's guidance in Kenya Power and Lighting Company v Benzene Holdings on the scope of inherent jurisdiction, the court held that such powers must be exercised judicially. It found that the Appellants had not demonstrated efforts to fast-track the appeal, had already failed in an earlier stay application under Order 42 Rule 6, and were approaching the court 'through another door', amid allegations of criminality. The application was dismissed with costs. The substantive appeal remains pending and the underlying judgment was not disturbed.

Key legal issues

#
01

Whether the court should exercise its inherent jurisdiction to issue a status quo order preserving the suit property pending appeal

Holding

No - the application for status quo was dismissed with costs.

Reasoning

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.

p. 4
02

Relevance of Order 9 Rule 9 to the application

Holding

Order 9 Rule 9, which relates to post-judgment change of advocates, was inapplicable to the application.

Reasoning

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.

p. 3
03

Whether lack of opposition warrants allowing an application

Holding

No - the judicial system is a meritocracy and applications are determined on their merits regardless of opposition.

Reasoning

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.

p. 3

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. 1.The Notice of Motion dated 21st July 2022 seeking a status quo order pending appeal was dismissed
  2. 2.Costs of the application to the Respondents (dismissed with costs)

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (6)

  • Fatuma Abdi Jillo v Kuro Lengesen & another
    [2021] eKLR
  • Rhoda Mukuma v. John Abuoga
    (1988) eKLR
  • Elgon Kenya Limited v Peter Musyoka Kamuya
    [2017] eKLR
  • Monica Mukuhi Khirrecu & another v Caleb Omboga Moturi
    [2021] eKLR
  • Kenya Power and Lighting Company versus Benzene Holdings t/a as Wyco Holdings
    Not stated
  • Meshallum Waweru Wanguku
    Not stated (referred to as 'supra')
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.