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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial court should grant stay of execution of its own judgment pending appeal
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
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
#- 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
#- 1.The Defendants' Notice of Motion Application dated 15th February, 2023 is dismissed with no order as to costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 22 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.