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ELCDismissedEnvironment & Land Case 209 of 2017· [2023] KEELC 16786 (KLR)

Katula & another (Suing as legal representatives and administrators of the Estate of Stephen Katula Muyendi) v Musambayi (Being sued on his own behalf and on behalf of 41 others)

Environment and Land Court
12 April 2023
1,235 words in judgment
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The bottom line

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The Machakos Environment and Land Court refused to pause an eviction order because the defendants should have asked the Court of Appeal, not the trial court.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (CA Ochieng, J) determined the Defendants' Notice of Motion dated 15 February 2023, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 22 and 51 of the Civil Procedure Rules, seeking a stay of the judgment and decree issued on 31 October 2022 pending the hearing and determination of their appeal. The defendants, who had been ordered to give the plaintiffs vacant possession of the suit land after 120 days, deponed that they had heavily invested on the land and stood to suffer substantial loss if evicted, rendering their appeal nugatory. The application was unopposed by way of replying affidavit but contested through written submissions, in which the plaintiffs argued the application was brought under the wrong provisions and that time for filing the appeal had lapsed. The court framed a single issue: whether a stay of execution should issue. Reviewing Order 42 Rule 6(2) of the Civil Procedure Rules and Rule 5(2)(b) of the Court of Appeal Rules, and associating itself with the principles in Butt v Rent Restriction Tribunal, the court held that since the defendants had already lodged a Notice of Appeal in the Court of Appeal on 8 November 2022, the stay application should have been filed in that court. The defendants had also not shown what directions the Court of Appeal had issued. The application was found unmerited and dismissed with no order as to costs.

Key legal issues

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01

Whether the trial court should grant stay of execution of its own judgment pending appeal

Holding

Application dismissed; the proper forum was the Court of Appeal as a Notice of Appeal had been lodged there, and the applicants failed to meet the Order 42 Rule 6(2) threshold

Reasoning

The court noted judgment was delivered on 31 October 2022 with 120 days allowed before vacant possession, and the defendants lodged a Notice of Appeal on 8 November 2022. Since the appeal was already lodged in the Court of Appeal, the stay application should have been made there under Rule 5(2)(b) of the Court of Appeal Rules. The defendants also did not show what directions the Court of Appeal had issued. The threshold for stay was not met.

Legal principles established

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  • Where an appellant has already lodged an appeal in the Court of Appeal, an application for stay of execution pending that appeal should be filed in the Court of Appeal, not the trial court

Court orders

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  1. 1.The Defendants' Notice of Motion Application dated 15th February, 2023 is dismissed with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 22; Order 51; Order 42 Rule 6(1) and (2)
  • Appellate Jurisdiction Act - Court of Appeal RulesRule 5(2)(b); Rule 75

Cases cited (7)

  • Vishram Ravji v Thornton & Turpin
    (1990) KLR 365
  • Kenya Shell Ltd v Kabiru & Anor
    (1986) eKLR 410
  • RWW v. EKW
    (2019) eKLR
  • Thomas Kiplel Sum v. Philip Kipkorir Samich & 3 others
    (2014) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417

    Principles on discretionary power to grant or refuse stay of execution pending appeal

  • Safaricom Ltd v. Ocean View Beach Hotel Ltd & 2 Others
    [2010] eKLR
  • Jaribu Holdings Ltd v Kenya Commercial Bank Ltd
    CA No. 314 of 2007
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 22 and 51 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, "Katula & another (Suing as legal representatives and administrators of the Estate of Stephen Katula Muyendi) v Musambayi (Being sued on his own behalf and on behalf of 41 others)", Case Analysis (2023). Environment & Land Case 209 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16786/eng@2023-04-12

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