Mjomba v Mwanjala & 4 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Stay of execution of the subordinate court's ruling pending appeal
Stay of execution granted; the appellant demonstrated substantial loss, brought the application without undue delay, and offered security (deposit of the title deed)
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.
Stay of proceedings in the subordinate court pending appeal
Stay of proceedings granted because the appeal was arguable and continuing the lower court proceedings would render the appeal nugatory
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.
Costs of the application
Costs of the application awarded to the Appellant, to be borne by the 4th Respondent, as costs follow the event
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.
Legal principles established
#- 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
#- 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.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.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.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.Costs of the application to be borne by the 4th Respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.