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ELCDismissedEnvironment & Land Case E010 of 2022· [2023] KEELC 16444 (KLR)

Barasa v Barasa

Environment and Land Court
21 March 2023
BOBoaz N. Olao
3,544 words in judgment
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The bottom line

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The Environment and Land Court refused to pause a land ruling because the applicant waited eight months, showed no real loss, and the orders had already been carried out.

What this practically means

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Executive summary

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Michael Aluku Barasa moved the Environment and Land Court at Busia (Olao J) by Notice of Motion dated December 13, 2022 seeking stay of execution of a ruling delivered by Hon. L. Ambasi, Chief Magistrate, on April 26, 2022 in Busia CMC Misc Application No. 33 of 2018, plus conservatory orders preserving status quo pending his appeal. The ruling had directed revocation of titles to South Teso/Apokor/4325 and 4326 and reversion to the parent title. The respondent opposed, raising two jurisdictional objections: res judicata (a similar stay application was dismissed in the trial court on December 2, 2022) and incompetency because the applicant's advocates were not properly on record under Order 9 Rule 9. The court rejected both objections: Order 42 Rule 6(1) permits a fresh stay application in the appellate court since the two courts exercise different jurisdictions, and non-compliance with Order 9 Rule 9 is procedural, not fatal, absent prejudice, following Tom M. Wafubwa v Bishop Ben Butali and Bonface Kiragu Waweru v James K. Mulinge. On the merits, applying Order 42 Rule 6 and Vishram Ravji Halai v Thornton & Turpin, the court found the applicant met only two of four conditions: he failed to demonstrate substantial loss, filed the application some eight months after the ruling without explanation, and did not rebut the respondent's evidence that the orders had already been implemented - the parcels having reverted and been consolidated into title South Teso/Apokor/4916 in the name of the deceased original owner - leaving nothing capable of being stayed. The application was dismissed with costs.

Key legal issues

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01

Res judicata as against a fresh stay application in the appellate court

Holding

The plea of res judicata fails; Order 42 Rule 6(1) expressly permits a stay application in the appellate court even where the trial court has granted or refused one

Reasoning

Section 7 CPC applies to suits and applications, but Order 42 Rule 6(1) allows a party aggrieved by a trial court's refusal of stay to move the appellate court. The trial court and the appellate court exercise different jurisdictions when considering stay. The prior dismissal in the trial court therefore does not bar this application.

p. 3
02

Whether filing by an advocate not properly on record under Order 9 Rule 9 renders the application a nullity

Holding

Non-compliance with Order 9 Rule 9 is not fatal where no prejudice is shown and jurisdiction is unaffected

Reasoning

Relying on Tom M. Wafubwa v Bishop Ben Butali and Bonface Kiragu Waweru v James K. Mulinge, the court held that failure to comply with Order 9 Rule 9 is procedural rather than fundamental. The respondent did not specify which counsel previously appeared nor demonstrate prejudice, so the application was not a nullity.

p. 4
03

Whether the conditions for stay of execution pending appeal were met

Holding

Only two of four conditions were met; the application failed on substantial loss, unreasonable delay and implemented orders

Reasoning

The applicant did not demonstrate the substantial loss he would suffer, filed the application about eight months after the ruling without explanation, and the respondent's unrebuted evidence showed the orders had been implemented, leaving nothing capable of being stayed. Willingness to offer security and filing of an appeal satisfied only two conditions.

p. 6

Legal principles established

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  • A plea of res judicata does not bar a fresh stay application in the appellate court because Order 42 Rule 6(1) allows a party to seek stay both in the trial court and the appellate court, which exercise different jurisdictions
  • Non-compliance with Order 9 Rule 9 is procedural, not fatal, where no prejudice is caused and the court's jurisdiction is not undermined
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal
  • A stay cannot issue where the orders sought to be stayed have already been fully implemented

Court orders

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  1. 1.The Notice of Motion dated December 13, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1B, 3, 3A, 79G
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 9 Rule 9
  • Constitution of KenyaArticles 47, 48, 159(2)

Cases cited (6)

  • Kanorero River Farm Ltd & Others v National Bank of Kenya Ltd
    2002 KLR 207

    Res judicata under Section 7 CPC applies to both suits and applications

  • Tom M. Wafubwa -v- Bishop Ben Butali
    2017 eKLR

    Appeal is new proceedings; failure to comply with Order 9 Rule 9 not fatal where no prejudice or miscarriage of justice

  • Bonface Kiragu Waweru -v- James K. Mulinge
    2015 eKLR

    Non-compliance with Order 111 Rule 9A (now Order 9 Rule 9) is procedural, not fundamental, and does not render proceedings a nullity

  • Vishram Ravji Halai & Another v Thornton & Turpin [1963] Ltd
    KLR 365

    Three conditions for stay: sufficient cause, substantial loss, security; application without unreasonable delay

  • Kenya Shell Ltd v Benjamin Kibiru
    1982-88 1 KAR 1018 [1986] KLR 410

    Substantial loss is the cornerstone of stay jurisdiction

  • Kileleshwa Service Station Ltd v Kenya Shell Ltd
    2008 eKLR

    A stay suspends performance to preserve status quo; it does not undo what has already been done

On appeal from
Chief Magistrate's Court at Busia
Busia CMC Misc Application No. 33 of 2018
Jurisdiction invoked
Sections 1, 1B, 3, 3A and 79G of the Civil Procedure Act; Order 42 of the Civil Procedure Rules; Articles 47, 48 and 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barasa v Barasa", Case Analysis (2023). Environment & Land Case E010 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16444/eng@2023-03-21

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