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ELCStruck OutKitale ELC Application dated 19/03/2024 in pending appeal from Kitale CMCC Land Case No. 73 of 2019· [2024] KEELC 5192 (KLR)

Kosgei & 2 others v Musoi & another (Environment & Land Case E004 of 2024) [2024] KEELC 5192 (KLR)

Environment and Land Court
11 July 2024
1,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant/Applicants moved the Environment and Land Court at Kitale by Notice of Motion dated 19/03/2024 under Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of execution of the ex parte judgment delivered on 27/03/2023 in Kitale CMCC Land Case No. 73 of 2019 and of the orders made on 19/02/2024, together with leave to testify and call witnesses pending the hearing of the appeal. The application was supported by an affidavit of the 3rd Applicant, Joel Kipkemboi, who claimed authority to swear it on behalf of the others, though no such authority was exhibited. The Respondents opposed through grounds of opposition, arguing the application was misconceived, that the Court's jurisdiction had been wrongly invoked, and that it sought to stay a negative order - the ruling of 19/02/2024 having dismissed an application for review and setting aside of the ex parte judgment. Resolving two issues - whether the application was properly before the Court and who should bear costs - the Court, per Hon. Dr. Iur Nyagaka J, held that under Order 42 Rule 6(1) an appellant must first seek a stay from the court appealed from; only where that court has granted or refused a stay may the appellant move the appellate court, which is otherwise seized of no jurisdiction. The Applicants admitted they had not first approached the subordinate court. Applying its earlier decision in Anyenda v Simidi & 12 others, the Court found the application incompetent, struck it out, and awarded costs to the Respondents.

Key legal issues

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01

Whether the application was properly before the ELC without the Applicants first moving the subordinate court for stay

Holding

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.

Reasoning

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.

p. 4
02

Whether the affidavit of the 3rd Applicant, Joel Kipkemboi, was properly sworn with authority

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application is struck out with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 62 Rule 6(1) (as cited by the Court)

Cases cited (1)

  • Anyenda v Simidi & 12 others
    (Environment and Land Appeal 1 of 2023) [2023] KEELC 21845 (KLR) (24 November 2023) (Ruling)
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

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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, "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.