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ELCAllowedEnvironment and Land Appeal 6 of 2021· [2023] KEELC 16688 (KLR)

Theuri v Mochama (Suing as the Legal Representative to the Estate of Mochama Ong'ondo – Deceased) & 2 others

Environment and Land Court
22 March 2023
2,568 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused a land case, ruling the appellant wasn't in contempt and that a res judicata appeal justified staying proceedings.

What this practically means

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Executive summary

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This ruling by Kullow J of the Environment and Land Court at Kilgoris determined a Notice of Motion dated March 8, 2021 by James W Theuri, the Appellant, seeking stay of proceedings in Kilgoris Magistrate ELC Case No 24 of 2020 and suspension of injunction orders issued on February 18, 2021 by the trial court in favour of Teresa Nyaboke Mochama, the 1st Respondent. The Appellant, registered owner of LR No Transamara/Ololchani/863, argued the fresh magistrate court suit was res judicata, the same dispute having been finally determined by the Kisii ELC Court and the Court of Appeal, which ordered eviction of the 1st Respondent's daughter. The 1st Respondent opposed, contending the trial court invoked section 13 of the ELC Act to preserve the suit property, that the Appellant had disobeyed the injunction by demolishing developments, and that a contemnor must purge contempt before seeking audience; she also denied being party to the prior proceedings and invoked Article 40 on fraudulently obtained title. The court framed two issues: contempt and the conditions for stay. On contempt, relying on Rose Detho as adopted in KUPPET v Kanyamba, it held there is no absolute bar to hearing an unpurged contemnor and found the Appellant's actions were pursuant to superior court orders, so he was not in contempt. On stay, applying Global Tours & Travels and Niazsons, it found an arguable appeal founded on res judicata, filed within 18 days, and granted stay of proceedings and suspension of the February 18, 2021 order pending the appeal, directing filing of the Record of Appeal within 45 days, with costs to abide the appeal.

Key legal issues

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01

Whether the Applicant was in contempt of the trial court's orders of February 18, 2021

Holding

The Applicant was not in contempt; his actions were pursuant to superior court orders directing eviction, so he could not be denied audience.

Reasoning

The court reviewed decisions of the High Court, ELC and Court of Appeal touching on the subject matter and found the Applicant's complained-of actions were done pursuant to superior court orders, particularly Onyango J's decision in Kisii ELC No 918 of 2016 directing eviction. The requirement to purge contempt before seeking audience therefore did not apply.

p. 3
02

Whether the conditions for stay of proceedings were met

Holding

Stay of proceedings granted: the appeal was arguable (founded on res judicata), the application was filed within 18 days, and proceeding would waste judicial time if the appeal succeeded.

Reasoning

Applying the Global Tours & Travels principles and Niazsons, the court found the appeal, premised on res judicata, would if successful affect the trial court's jurisdiction; continuing proceedings would render the appeal nugatory and waste judicial time. The application was filed 18 days after the order, hence timeously. Stay was granted in the interest of justice.

p. 5

Legal principles established

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  • There is no absolute legal bar to hearing a contemnor who has not purged the contempt; whether to hear the contemnor is discretionary.
  • Stay of proceedings is a drastic remedy; the test is high and stringent and the discretion must be exercised sparingly.
  • Conditions for stay of proceedings: arguable appeal, sufficient cause and expeditious filing.

Court orders

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  1. 1.An Order of Stay of Proceedings issued in Kilgoris Magistrate ELC Case No 24 of 2020 pending the hearing and determination of the Appeal
  2. 2.The Court Order dated the 18th day of February 2021 suspended from taking effect and implementation pending the hearing and determination of the Appeal
  3. 3.The Appellant directed to file the Record of Appeal within 45 days from the date of the ruling
  4. 4.Costs of the Application to abide the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure Actsection 3A
  • Environment and Land Court Actsection 13
  • Constitution of KenyaArticle 40

Cases cited (5)

  • Kenya Union Of Post Primary Teachers & 3 Others v Njeru Kanyamba
    [2018] eKLR

    Adopting Rose Detho on hearing a contemnor who has not purged contempt

  • Rose Detho v Ratilal Automobiles Ltd & 6 Others
    CA No 304 of 2006 (171/2006 UR)

    No absolute bar to hearing an unpurged contemnor; discretionary

  • Jadva Karsan vs Harnam Singh Bhogal
    [1953] 20 (1) EACA 74

    Inherent power under section 3A to stay proceedings where ends of justice require

  • Global Tours & Travels Limited
    Nairobi HC Winding up Cause No 43 of 2000

    Principles for stay of proceedings: interest of justice, arguable appeal, expeditious filing

  • Niazsons (K) Ltd v China Road & Bridge Corporation (Kenya)
    [2001] eKLR

    Stay should be granted where the appeal may render orders nugatory

On appeal from
Kilgoris Magistrate's Court
Kilgoris Magistrate ELC Case No 24 of 2020
Jurisdiction invoked
Appellate jurisdiction over the subordinate court under the Environment and Land Court Act; stay sought under Order 42 Rule 6(1) of the Civil Procedure Rules and section 3A of the Civil Procedure 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, "Theuri v Mochama (Suing as the Legal Representative to the Estate of Mochama Ong'ondo – Deceased) & 2 others", Case Analysis (2023). Environment and Land Appeal 6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16688/eng@2023-03-22

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