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ELCAllowedEnvironment and Land Appeal E002 of 2023· [2023] KEELC 21730 (KLR)

Paschal (Guardian ad-litem of Paschal Mule Nzyuko) v Muthoka & 2 others

Environment and Land Court
15 November 2023
TMT W Murigi
2,261 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused a land case because the appeal over the court's jurisdiction deserves a proper hearing first.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni (Murigi, J) on a Notice of Motion dated February 3, 2023 by the appellant, Josephat Kiluva Paschal, suing as guardian ad-litem of Paschal Mule Nzyuko, seeking a stay of proceedings in Tawa MCELC Case No 175 of 2019 pending the hearing of his appeal against a ruling delivered on January 31, 2023 dismissing his preliminary objection challenging the trial court's jurisdiction. The appellant contended that the respondents' ownership claim over parcels Mbooni/Utangwa/2456, 2039 and 2458 was barred by a prior Minister's decision which they had not appealed, and that the trial court lacked jurisdiction. The respondents, through the replying affidavit of Julius Mutinda Muthoka and written submissions, opposed, arguing the ownership issue was not determined in the judicial review proceedings, that the application violated their right to a fair hearing, and that stay of proceedings should be granted sparingly. The court framed one issue: whether the Tawa proceedings should be stayed pending appeal. Applying the Global Tours & Travels and Kinyanjui v Ketter principles, it found the appeal arguable on the jurisdiction question, that the appeal would be rendered nugatory if the suit proceeded, and that the application was filed without unreasonable delay. The application was allowed: stay of proceedings granted, conditional on the appellant filing and serving the Record of Appeal within 45 days, failing which the stay lapses automatically. Costs were in the cause.

Key legal issues

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01

Whether stay of proceedings pending appeal should issue

Holding

Application allowed; stay granted because the appeal on jurisdiction is arguable and the appeal would be rendered nugatory if the lower court suit proceeded.

Reasoning

The court applied the Global Tours & Travels and Kinyanjui v Ketter principles: stay of proceedings is discretionary and granted in the interest of justice. The memorandum of appeal raised the arguable question of the trial court's jurisdiction. If the lower court suit were heard and the appeal succeeded, the proceedings would have been rendered unnecessary and judicial time wasted. The application was filed without unreasonable delay, and the court imposed a 45-day record-filing condition with automatic lapse on default.

02

Whether the application was filed expeditiously

Holding

Yes; the application was filed about one month after the ruling, which was not inordinate delay.

Reasoning

The ruling appealed was delivered on January 31, 2023, the memorandum of appeal was filed on February 15, 2023, and the application on March 3, 2023. The court held that one month could not be said to be inordinate and was satisfied the application was filed without delay.

p. 5

Legal principles established

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  • Whether to grant a stay of proceedings is a judicial discretion to be exercised judiciously in the interest of justice, weighing the need for expeditious disposal, arguability of the appeal, judicial time and expedition of the application.
  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous or idle.

Court orders

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  1. 1.Stay of proceedings in Tawa MCELC Case No 175 of 2019 pending the hearing and determination of the main appeal
  2. 2.The appellant shall file and serve his Record of Appeal within forty five (45) days from the date of the Ruling
  3. 3.In the event of default, the order of stay of proceedings will automatically lapse and the respondents will be at liberty to move the lower court to proceed with Tawa MCELC No 175 of 2019
  4. 4.Costs of the application will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Land Adjudication ActSection 29
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)(b)
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (5)

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

    Principles for granting stay of proceedings: judicial discretion exercised in the interest of justice, weighing pros and cons.

  • Stanley Kangethe Kinyanjui vs Tony Ketter & others
    [2013] eKLR

    Applicant must show an arguable, non-frivolous appeal and that the appeal would be rendered nugatory without stay.

  • Kenya Wildlife Services vs James Mutembei
    (2019) eKLR

    Power to stay proceedings ought to be exercised sparingly and only in exceptional cases.

  • UAP Insurance Company Ltd vs Michael John Beckett
    [2004] eKLR

    Applicant need only show an arguable, non-frivolous appeal that will be rendered nugatory if stay is not granted.

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

    Stay should be granted where the appeal's result may render orders made nugatory and the exercise futile.

On appeal from
Tawa Magistrates' Court (trial court)
Tawa MCELC Case No 175 of 2019
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; section 29 of the Land Adjudication Act; orders 42 rule 6 and 51 rule 1 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, "Paschal (Guardian ad-litem of Paschal Mule Nzyuko) v Muthoka & 2 others", Case Analysis (2023). Environment and Land Appeal E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21730/eng@2023-11-15

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