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ELCDismissedMiscellaneous Application (Notice of Motion dated 6th June 2023), Loitoktok ELC· [2024] KEELC 1734 (KLR)

Muiyoro & 3 others v Mwaura & another (Environment and Land Miscellaneous Application 4 of 2023) [2024] KEELC 1734 (KLR)

Environment and Land Court
11 April 2024
1,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed landowners' bid to halt their eviction because they filed no appeal and asked one judge to undo another judge's decision.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi J, 11 April 2024) determined a Notice of Motion dated 6th June 2023 in which the Applicants, led by Hannah Wanja Muiyoro, sought a stay of execution of the judgment delivered on 31st May 2023 in Loitoktok ELC No. E001 of 2023 (which ordered the 1st Applicant to vacate Loitoktok/Rombo A/185, demolish structures and exhume remains), and alternatively review or setting aside of the judgment of Nyakundi J. in Kajiado Civil Suit No. 1 of 2017 (OS) delivered on 16th October 2018, plus a stay of proceedings in Loitoktok ELC Case No. E002 of 2023. The Respondents opposed, contending that no appeal had been filed, that the court lacked jurisdiction to review a decision of an equal court, and that the 1st Applicant lacked locus standi having no letters of administration to her late husband's estate. The court dismissed the application, holding that a stay of execution pending appeal must be anchored on an appeal or intended appeal, none of which existed; that courts of equal standing cannot review each other's decisions, applying Bellevue Development Company Ltd v Gikonyo; and that the impugned judgment had already been affirmed by the Court of Appeal on 24th June 2022 in Civil Appeal No. 261 of 2019. The 1st Applicant was advised to ventilate any dispute properly and with proper legal capacity. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the court could grant a stay of execution absent a pending or intended appeal

Holding

The stay was refused because the application had no appeal anchoring it; Order 42 Rule 6 requires an appeal or intended appeal

Reasoning

The court held that the miscellaneous application lacked a substantive foundation. Where a stay of execution is contingent upon an appeal, the applicants must annex the appeal to the application. No appeal accompanied the application, leaving it devoid of the requisite legal basis, and the Court of Appeal authority in New Ocean Transport was applied.

p. 3
02

Whether the High Court/ELC can review or set aside a judgment delivered by a court of equal jurisdiction

Holding

No; courts of equal standing lack supervisory jurisdiction over each other, and the impugned judgment had already been upheld by the Court of Appeal

Reasoning

Relying on Bellevue Development Company Ltd v Gikonyo, the court held that in a hierarchical system judges of concurrent jurisdiction cannot superintend over each other, save that the High Court has supervisory jurisdiction over subordinate courts only under Article 165(6) of the Constitution. Further, the Nyakundi J. judgment had been appealed and dismissed by the Court of Appeal on 24th June 2022.

p. 3
03

Whether the 1st Applicant had locus standi to litigate on behalf of her late husband's estate without letters of administration

Holding

She lacked capacity; no grant of letters of administration was demonstrated, tainting the application

Reasoning

The respondents challenged the 1st Applicant's legal capacity as representative of the estate of her late husband. The court noted the lower court had struck out her counterclaim for want of letters of administration and found that no evidence of the grant had been tendered, a defect going to the core of the application.

p. 4
04

Costs of the application

Holding

Although costs follow the event, each party was ordered to bear their own costs given the effect of the lower court's judgment on the 1st Applicant

Reasoning

The court acknowledged the general rule under Section 27 of the Civil Procedure Act that costs follow the event, but, being mindful of the lower court's judgment and what it means to the 1st Applicant, exercised discretion to order that parties bear their own costs of the application.

p. 5

Legal principles established

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  • Judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other; no judge of the High Court can review a decision of a judge of equal status
  • A stay of execution pending appeal must be anchored on an appeal or intended appeal
  • A person suing in a representative capacity for a deceased's estate requires letters of administration to have locus standi

Court orders

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  1. 1.Application dated 6th June 2023 dismissed
  2. 2.Each party to bear their own costs of the application
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act; Order 51 Rule 1, Order 45 Rule 1, Order 22 Rule 22(1) of the Civil Procedure Rules; Articles 40 and 159(2) of the Constitution of Kenya

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, "Muiyoro & 3 others v Mwaura & another (Environment and Land Miscellaneous Application 4 of 2023) [2024] KEELC 1734 (KLR)", Case Analysis (2024). Miscellaneous Application (Notice of Motion dated 6th June 2023), Loitoktok ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1734/eng@2024-04-11

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