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ELCAllowedEnvironment and Land Appeal 25 of 2022· [2023] KEELC 16806 (KLR)

Mjomba v Mwanjala & 4 others

Environment and Land Court
28 March 2023
9,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~39 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Naikuni J) on the Appellant's Notice of Motion dated 10th August 2022, seeking stay of execution of, and stay of proceedings pursuant to, a ruling delivered on 7th July 2022 by T.N. Sinkiyian (SRM) in Voi ELC No. E047 of 2021, which had dismissed the Appellant's injunction application and struck out the 4th Respondent from the suit with costs. The Appellant, who had filed a Memorandum of Appeal, argued the appeal would be rendered nugatory if stay was not granted. The 4th Respondent opposed, contending there was no threat of execution - her advocates' letter merely invited a proposal on costs - and that the application was an abuse of process. The court framed three issues: stay of execution, stay of proceedings, and costs. Applying Order 42 rule 6(2), it found substantial loss likely, the application brought without undue delay (about one month), and security offered by way of deposit of the title deed; it therefore granted stay of execution. On stay of proceedings, applying the stringent test from Global Tours & Travels and Kenya Wildlife Service, it found the appeal arguable - the trial court had erred in dismissing the entire suit against the 4th Defendant despite triable issues - and granted a stay so the appeal would not be rendered nugatory. Costs of the application were awarded to the Appellant against the 4th Respondent, costs following the event under Section 27(1) of the Civil Procedure Act. The appeal was directed to be heard within 180 days, with a pre-trial conference on 22nd May 2023.

Key legal issues

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01

Stay of execution of the subordinate court's ruling pending appeal

Holding

Stay of execution granted; the appellant demonstrated substantial loss, brought the application without undue delay, and offered security (deposit of the title deed)

Reasoning

The court applied Order 42 rule 6(2) conditions. It found the appellant susceptible to substantial loss if the 4th Respondent executed, held the application filed within about one month was not inordinate delay, and accepted the pledge to deposit the title deed as security. The court balanced the appellant's right of appeal against the successful litigant's right to the fruits of judgment and opted for the lower risk of injustice.

p. 15
02

Stay of proceedings in the subordinate court pending appeal

Holding

Stay of proceedings granted because the appeal was arguable and continuing the lower court proceedings would render the appeal nugatory

Reasoning

Relying on Re Global Tours & Travels and the Halsbury principles, the court held stay of proceedings is discretionary and exercised sparingly. It found the appeal arguable - the trial court erred in dismissing the entire suit against the 4th Defendant despite triable issues - and that the application was filed without delay. Judicial time should not be wasted on proceedings that would become academic if the appeal succeeded.

p. 17
03

Costs of the application

Holding

Costs of the application awarded to the Appellant, to be borne by the 4th Respondent, as costs follow the event

Reasoning

The court invoked Section 27(1) of the Civil Procedure Act, under which costs follow the event and are at the court's discretion. Since the Appellant succeeded in the application, she deserved costs against the 4th Respondent.

p. 17

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the three conditions in Order 42 rule 6(2): substantial loss, no unreasonable delay, and security
  • The applicant must demonstrate both limbs - an arguable appeal and that the appeal would be rendered nugatory - not just one
  • Stay of proceedings is a grave judicial action to be exercised sparingly and only in exceptional cases

Court orders

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  1. 1.The Notice of Motion application dated 10th August, 2022 be and is hereby found to have merit and is allowed in its entirety
  2. 2.Stay of execution of the Ruling of Voi ELC No E047 of 2021 delivered on 7th July 2022 and all its subsequent Orders pending the hearing and final determination of the Appeal
  3. 3.Stay of proceedings of the Civil Case before the ELC (Voi) No. E047 of 2021 pending the hearing and final determination of the Appeal
  4. 4.The appeal to be fixed for hearing within 180 days from 5th October, 2023, with a Pre-Trial Conference on 22nd May, 2023 for admission and directions under Section 79B and G of the Civil Procedure Act and Order 42 rules 11, 13 and 16
  5. 5.Costs of the application to be borne by the 4th Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27(1), 79B and G
  • Civil Procedure Rules, 2010Order 42 rules 6, 7, 11, 13, 14, 16; Order 22 rule 22; Order 51
  • Constitution of Kenya, 2010general reference

Cases cited (19)

  • Gideon Sitelu Konchellah – Versus - Lekakeny Ole Sunkuli & 2 Others
    (2018) eKLR

    A replying affidavit is the principal document anchoring a respondent's submissions; absent it, submissions are of no effect

  • West Credit – Versus - Geoffrey Mokaya Aboki & Karen Chepkurui
    (2022) eKLR

    Factors in deciding whether to order a stay, including arguability and expeditiousness

  • Galaxy Paints Company Limited – Versus - Falcon Guards Limited
    Court of Appeal Case Number 219 of 1998

    Issues for determination flow from the pleadings

  • James Wangalwa & Another – Versus - Agnes Naliaka Cheseto
    [2012] eKLR

    Execution in motion or levied does not by itself amount to substantial loss

  • RWWX – Versus - EKW
    [2019] eKLR

    Purpose of stay of execution pending appeal; balancing appellant's and respondent's interests

  • Kenya Wildlife Service – Versus - James Mutembei
    (2019) eKLR

    Stay of proceedings is a grave judicial action; the test is high and stringent

  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000

    Stay of proceedings is discretionary; court weighs pros and cons including arguability and judicial time

  • Party of Independent Candidate of Kenya – Versus - Mutula Kilonzo & 2 Others
    (2013) eKLR

    Costs are discretionary and follow the event

  • Julius Irungu Wairia - Versus - Lilian Kagwiria
    [2018] eKLR

    Fundamental principles underlying the award of costs

  • Consolidated Marine – Versus - Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)

    Purpose of stay of execution is to preserve the subject matter in dispute

  • Mukuma – Versus - Abuoga
    (1988) KLR 645

    Substantial loss is what has to be prevented by preserving the status quo

  • Vishram Ravji Halai – Versus - Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365

    High Court's jurisdiction to grant stay is fettered by conditions of sufficient cause, substantial loss and security

  • Suleiman – Versus - Amboseli Resort Limited
    [2004] 2 KLR 589

    Court should opt for the lower rather than the higher risk of injustice

  • Samvir Trustee Limited – Versus - Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997

    Balancing exercise: appeal not rendered nugatory while successful party enjoys fruits of judgment

  • Butt – Versus - Rent Restriction Tribunal
    [1979]

    Discretion to grant stay should be exercised so as not to prevent an appeal

  • Aron C. Sharma – Versus - Ashana Raikundalia T/A Rairundalia & Co. Advocates

    Purpose of security under Order 42 is to guarantee due performance of the decree, not to punish

  • Muchanga Investments Ltd – Versus - Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR

    Judicial time is the only resource courts have and its management affects the administration of justice

  • Cecilia Kahururu Ngayo – Versus - Barclays Bank of Kenya Limited
    (2016) eKLR

    Costs follow the event; principle compensates the successful party, not to penalize the losing party

  • Republic – Versus - Rosemary Wairimu, Ex-Parte Applicant – Versus - Ihururu Dairy Farmers Cooperative Society Ltd
    (2014) eKLR

    Costs are discretionary and the basic rule is that costs follow the event

On appeal from
Chief Magistrate's Court at Voi (ELC No. E047 of 2021)
Voi ELC No. E047 of 2021
Jurisdiction invoked
Order 42 rules 6, 7, 14, Order 22 rule 22 and Order 51 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mjomba v Mwanjala & 4 others", Case Analysis (2023). Environment and Land Appeal 25 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16806/eng@2023-03-28

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