Kosgei & 2 others v Musoi & another (Environment & Land Case E004 of 2024) [2024] KEELC 5192 (KLR)
The bottom line
#The court struck out a stay application because the appellants skipped the required first step of asking the lower court for a stay before coming to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was properly before the ELC without the Applicants first moving the subordinate court for stay
The application was incompetent; the Applicants were bound to first seek a stay from the trial court, and the appellate court's jurisdiction arises only upon the trial court's refusal of a stay which the applicant is aggrieved by.
Order 42 Rule 6(1) contemplates that the appellate court may entertain a stay application after the court appealed from has granted or refused such an application. Where the order appealed against was a ruling dismissing review/set-aside of an ex parte judgment, not a stay order, the proper course was to seek a stay from the subordinate court first. The Applicants admitted they had not done so, meaning the ELC lacked jurisdiction to entertain the application.
Whether the affidavit of the 3rd Applicant, Joel Kipkemboi, was properly sworn with authority
The Court doubted the truthfulness of the deposition that the 3rd Applicant was authorized to swear the affidavit on behalf of the other Applicants, since no such authority was exhibited.
The 3rd Applicant deponed that he was duly authorized to swear the affidavit on behalf of the other Applicants, but no such authority was produced to the Court. The Court therefore regarded the affidavit as defective and a candidate for striking out, treating the 3rd Applicant as acting on his own initiative.
Legal principles established
#- An appellant must first move the court appealed from for stay of execution or proceedings before the appellate court can entertain such an application; the appellate court is seized of jurisdiction only where the subordinate court has rendered itself and the party is aggrieved by its decision.
Court orders
#- 1.The application is struck out with costs to the Respondents
- On appeal from
- Chief Magistrate's Court, Kitale
- Kitale CMCC Land Case No. 73 of 2019
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kosgei & 2 others v Musoi & another (Environment & Land Case E004 of 2024) [2024] KEELC 5192 (KLR)", Case Analysis (2024). Kitale ELC Application dated 19/03/2024 in pending appeal from Kitale CMCC Land Case No. 73 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5192/eng@2024-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.