Edgar Chilande Wanyama vs Emily Kivali Mulaya & Another
The bottom line
#The Environment and Land Court in Kitale refused to pause execution of a land judgment, ruling that building on disputed land during a case destroys any claim of loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules
The Applicant failed to demonstrate substantial loss; developments made during the pendency of the suit without court sanction cannot constitute substantial loss, and apprehension of alienation cannot be deemed fact.
The court set out the settled conditions: substantial loss, application without unreasonable delay, and security for due performance. While the application was filed only fifteen days after judgment, the court found no substantial loss demonstrated. Improvements made after the suits were instituted and without court authority offended the doctrine of lis pendens, so the court could not sanction that alleged loss. Apprehension of alienation after removal of cautions was mere speculation, not fact.
Whether an appeal had been filed
No appeal was proven to have been filed; the fact of filing a Notice of Appeal had to be established by affidavit evidence, not submissions.
The court found no paragraph in the Applicant's supporting affidavit alluding to the filing of a Notice of Appeal. The Applicant's claim of an appeal filed at Eldoret was raised only in submissions, which cannot constitute evidence. The court first learnt of the appeal through the 2nd Defendant's affidavit and annextures. Under Section 107 of the Evidence Act, the burden was on the Applicant to prove the fact of filing, which he failed to discharge.
Whether this Court had jurisdiction given a similar application pending before the Court of Appeal
The Court found it lacked jurisdiction to entertain the application as the same issues were being determined by the Court of Appeal, and the application was an abuse of process.
The 2nd Defendant evidenced that the Applicant had filed a replica application in Eldoret Civil Appeal No. E007 of 2024, a fact the Applicant deliberately withheld. The court held that two courts cannot be seized of jurisdiction over the same matter simultaneously; doing so would breed confusion and disrespect for the rule of law and precedent. Pursuing identical relief in both courts was misleading, misconceived and an extreme abuse of the process of the Court.
Legal principles established
#- Only one court can have jurisdiction of a subject matter at once; simultaneous pursuit of the same application in two courts is an abuse of process.
- Submissions do not constitute evidence.
- Investments or improvements made on suit property during the pendency of a suit and without the sanction of the court contravene the doctrine of lis pendens and cannot constitute substantial loss.
Court orders
#- 1.The Notice of Motion dated 20/12/2023 seeking stay of execution of the judgment and decree of 5th December 2023 is dismissed
- 2.Costs of the application to the Respondents who opposed it
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edgar Chilande Wanyama vs Emily Kivali Mulaya & Another", Case Analysis (2024). ELC Case Nos. 120 of 2014 & 4 of 2017 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1277/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.