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ELCStruck OutNot stated in the judgment (Notice of Motion dated 15/04/2024 in an appeal from Kapenguria SPM Land Case No. E036 of 2023)· [2024] KEELC 5304 (KLR)

Kimerinyang v Chekes (Suing as the legal representative of the Estate of the Late Lomerikat Pkurket Lomer) (Environment and Land Appeal E007 of 2024) [2024] KEELC 5304 (KLR)

Environment and Land Court
17 July 2024
FNFRED NYAGAKA
1,737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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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, confirming that step is mandatory before any appeal to a higher court.

What this practically means

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Executive summary

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By a Notice of Motion dated 15/04/2024, the Appellant sought a stay of proceedings in Kapenguria SPM Land Case No. E036 of 2023, an order setting aside the proceedings and ex parte orders of 07/03/2024 as a nullity, and costs. He argued that the trial court issued ex parte injunction orders over land parcel West Pokot/Kopro/Wakor/387 without hearing him on an amended application, condemning him unheard, and that his appeal had high chances of success. The Respondent opposed, deposing that the application was argued orally on 07/03/2024, that the Appellant was aware of and served with the orders, that the suit land was registered in the name of a deceased person, and that the Appellant had entered it to mine gold without consent and had never been in possession. The Court framed two issues: whether the application was properly before it, and costs. Applying Order 42 Rule 6(1) of the Civil Procedure Rules and its own earlier decision in Anyenda v Simidi, the Court held that an aggrieved party must first apply to the trial court for stay before moving the appellate court - a compulsory step that confers jurisdiction. Since the Applicant had bypassed the subordinate court, the application was premature, incompetent and amounted to forum shopping. The Court struck out the application with costs to the Respondent, declined to consider the merits as academic, and directed the Applicant to file the certified decree, record of appeal and payment receipt within seven days, with the appeal to be mentioned on 23/07/2024 under Section 79G of the Civil Procedure Act.

Key legal issues

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01

Whether the application for stay of proceedings was properly before the ELC

Holding

The application was incompetent and premature because the Applicant never first applied to the trial court for stay, as mandated by Order 42 Rule 6(1); the Court therefore lacked jurisdiction and struck the application out without considering the merits.

Reasoning

Order 42 Rule 6(1) contemplates that a party aggrieved by an order of stay made by the court appealed from may apply to the appellate court. This presupposes that the subordinate court was first moved. The Applicant bypassed the trial court, contrary to the Court's earlier decision in Anyenda v Simidi, and the step is compulsory, not optional. The application was therefore incurably incompetent.

p. 4
02

Who should bear the costs of the application

Holding

Costs were awarded to the Respondent, following the striking out of the application.

Reasoning

Having found the application incompetent, the Court struck it out with costs to the Respondent, the successful party in the application.

p. 4

Legal principles established

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  • Before moving the appellate court for stay of execution or proceedings, an aggrieved party must first seek similar orders in the trial court; this is a compulsory step conferring jurisdiction on the appellate court
  • Side-stepping the subordinate court and moving the appellate court directly for orders that should first have been sought in the subordinate court is akin to forum shopping

Court orders

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  1. 1.The application dated 15/04/2024 is struck out with costs to the Respondent
  2. 2.The Applicant is directed to file the certified decree and record of appeal, together with the original receipt of payment in respect of the appeal, within seven (7) days and serve the same on the Respondent
  3. 3.The appeal shall be placed before the Court for mention on 23/07/2024 for consideration under Section 79G of the Civil Procedure Act and further directions on admission, with both parties attending virtually

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G

Cases cited (1)

  • Anyenda v Simidi & 12 others (Environment and Land Appeal 1 of 2023) [2023] KEELC 21845 (KLR) (24 November 2023) (Ruling)
    [2023] KEELC 21845 (KLR)
On appeal from
Senior Principal Magistrate's Court, Kapenguria
Kapenguria SPM Land Case No. E036 of 2023
Jurisdiction invoked
Order 42 Rule 6(1)(2) and Order 51 Rule 1 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act

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, "Kimerinyang v Chekes (Suing as the legal representative of the Estate of the Late Lomerikat Pkurket Lomer) (Environment and Land Appeal E007 of 2024) [2024] KEELC 5304 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 15/04/2024 in an appeal from Kapenguria SPM Land Case No. E036 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5304/eng@2024-07-17

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