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ELCStruck OutEnvironment and Land Appeal 1 of 2023· [2023] KEELC 21845 (KLR)

Anyenda v Simidi & 12 others

Environment and Land Court
24 November 2023
FNF O Nyagaka
3,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a stay application because the appellant skipped the trial court, which must always be asked first.

What this practically means

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Executive summary

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The Appellant, William W Anyenda, moved the Environment and Land Court at Kitale by an application dated 14/07/2023 under Order 42 Rule 6 of the Civil Procedure Rules, 2010, seeking a stay of enforcement of ex parte orders made by the trial court on 16/05/2022 in Kitale CMC Land Case No. 50 of 2002, pending the hearing of his appeal against the Senior Principal Magistrate's ruling of 3/07/2023. He argued he was never served with the application of 03/08/2021 that led to the ex parte orders, that the decree had been perfected and titles were awaited, and that enforcement would render the appeal nugatory and expose him to committal to civil jail. The Respondents, through the Replying Affidavit of Enock Bulimo Simidi, opposed the application as premature and incompetent because the Appellant had never first sought stay in the trial court, and maintained service had been proper and the decree of 5/11/2002 remained unimplemented after some twenty years. The court framed three issues: competency, merit, and costs. It held that Order 42 Rule 6(1) makes an application to the trial court a compulsory precondition to the appellate court's jurisdiction over stay, applying Salat, Vipingo Ridge, Pius Mbithi and Mwangi v Mokaya. Finding the Appellant had side-stepped the subordinate court, the court struck out the application with costs to the Respondents, but in the interest of justice issued a conditional 21-day suspension of enforcement to allow the Appellant to move the proper forum, and directed him to file the order appealed from within 14 days.

Key legal issues

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01

Whether an application for stay under Order 42 Rule 6(1) is competent where the trial court was never first moved

Holding

The application is premature, incompetent and bad in law; the requirement to first approach the trial court is mandatory

Reasoning

Order 42 Rule 6(1) permits the appellate court to consider stay only where the court appealed from has granted or refused such an application. The Appellant did not deny, nor submit to the contrary, that he never sought stay in the trial court. Side-stepping the subordinate court is akin to forum shopping. The court relied on Salat, Vipingo Ridge, Pius Mbithi and its own decision in Mwangi v Mokaya.

p. 4
02

Consequence of an incurably defective application

Holding

The court need not consider the merits and should strike out the application with costs, though it may issue a conditional stay in the interest of justice

Reasoning

Having found the application incompetent at the preliminary stage, the court declined to analyse the merits. It nonetheless, in the interest of justice, granted a 21-day conditional suspension of enforcement to allow the Appellant to seek appropriate orders in the proper forum, and directed filing of the order appealed from.

p. 5

Legal principles established

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  • Before an appellant moves the appellate court for stay of execution or proceedings, he must first have moved the court appealed from; the step is compulsory and confers jurisdiction on the superior court only upon fulfilment

Court orders

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  1. 1.Application struck out with costs to the Respondents
  2. 2.Conditional order of stay of enforcement of the trial court's order for twenty-one (21) days to enable the Appellant to move the appropriate court, failing which the orders lapse automatically
  3. 3.Appellant directed to file the order appealed from within 14 days and move the Court to consider the appeal in terms of Order 42 Rules 2 and 11

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rules 2 and 11
  • Constitution of KenyaArticle 169
  • Constitution of KenyaArticle 159
  • Civil Procedure ActChapter 21, Laws of Kenya

Cases cited (8)

  • National Nak Of Kenya v. Peter Oloo Aringo
    [2004] eKLR

    Service of process by a process server

  • James Wangalwa & Another V. Agnes Naliaka Cheesto
    [2012] eKLR

    Conditions for grant of stay of execution under Order 42 Rule 6

  • RWW v. EKW
    [2019] eKLR

    Conditions for grant of stay of execution

  • Peter Muriuki Solomon V. Peter Midimo Agalo & 3 Others
    Kitale ELC No. 041 of 2016

    Conditions an applicant must fulfil for stay of execution

  • Nicholas Kiptoo Arap Korir Salat Vs. Independent Electoral And Boundaries Commission & 6 Others
    [2013] eKLR

    Article 159 and the oxygen principles cannot be used to overthrow rules of procedure

  • Vipingo Ridge Limited V Swalehe Ngonge Mpitta
    [2021] eKLR

    Applicant for stay pending appeal must first apply to the trial court

  • Pius Mbithi & Another V Daniel Mutiria & Another
    [2017] eKLR

    Trial court is the first port of call for stay pending appeal; application made directly to appellate court is premature

  • Mwangi V Mokaya
    (Environment and Land Appeal 17 of 2022) [2022] KEELC 14835 (KLR) (17 November 2022)

    A party may not skip the trial court as first point of call for stay; such an application is improper

On appeal from
Senior Principal Magistrate's Court, Kitale
Kitale CMC Land Case No. 50 of 2002
Jurisdiction invoked
Appeal from a subordinate court established under Article 169 of the Constitution; application under Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Anyenda v Simidi & 12 others", Case Analysis (2023). Environment and Land Appeal 1 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21845/eng@2023-11-24

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