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ELCDismissedNot stated in judgment· [2024] KEELC 6095 (KLR)

Freudenthal & another v Ryrie & another; Philiphs & another (Interested Parties) (Environment & Land Case 51 of 2023) [2024] KEELC 6095 (KLR)

Environment and Land Court
25 September 2024
1,050 words in judgment
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The bottom line

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The Environment and Land Court in Malindi dismissed a stay of proceedings because the vehicle at the heart of the dispute had already been sold, leaving nothing to stay.

What this practically means

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Executive summary

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The Defendant/Applicants moved the court by Notice of Motion dated 5th June 2024, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of further proceedings in the suit pending hearing and determination of an appeal, plus costs. The application was supported by an affidavit of Charles Bruce Arthur Ryrie, the 2nd Defendant/Applicant; the Plaintiffs/Respondents opposed through a replying affidavit of the 1st Plaintiff. The court directed written submissions. The sole issue was whether to stay proceedings pending appeal and who should bear costs. The court adopted the six principles for stay of proceedings set out in William Odhiambo Ramogi v Attorney General, as approved in Turbo Highway Eldoret Ltd v Muniu: a pending appeal, explanation for not seeking stay in the higher court, an arguable appeal, the appeal being rendered nugatory, exceptional circumstances, and expeditious filing. The court noted that on 24th April it had ruled on attachment before judgment, ordering deposit of the logbook of Motor Vehicle No. KAD 361Y Subaru Leon 1989 as security. However, the applicant himself conceded that the vehicle had been sold before the suit was filed, meaning he could not comply with the order. The court therefore held that the substratum of the case and the order to be appealed had been rendered otiose and there was nothing to stay. The application was dismissed with costs on 25th September 2024.

Key legal issues

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01

Whether the conditions for stay of proceedings pending appeal were met

Holding

The application was dismissed because the vehicle whose logbook was ordered deposited as security had already been sold before the suit, making the impugned interlocutory order and the appeal academic.

Reasoning

The court adopted the six principles for stay of proceedings laid out in William Odhiambo Ramogi (as cited in Turbo Highway Eldoret Ltd v Muniu). The applicant himself conceded in his affidavit that the motor vehicle, the subject of the attachment-before-judgment order, had been sold before the suit was filed. Since the order to be appealed could no longer be complied with or had become otiose, there was nothing to stay, and the application failed with costs.

p. 3

Legal principles established

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  • Stay of proceedings pending appeal requires an appeal already pending, an explanation for not seeking stay in the appellate court, an arguable appeal, that the appeal would be rendered nugatory, exceptional circumstances, and expeditious filing.
  • Where the subject matter of the order sought to be stayed no longer exists, a stay of proceedings cannot issue because there is nothing to stay.

Court orders

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  1. 1.The application dated 5th June 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules Cap 21Order 42 Rule 6

Cases cited (5)

  • Turbo Highway Eldoret Ltd v Muniu
    Civil Appeal E040 of 2021 [2022] KEHC 10197 (KLR)
  • William Odhiambo Ramogi & 2 others v the Honourable Attorney General & 3 others
    [2019] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • David Morton Silverstein v Atsango Chesoni
    [2002] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and 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, "Freudenthal & another v Ryrie & another; Philiphs & another (Interested Parties) (Environment & Land Case 51 of 2023) [2024] KEELC 6095 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6095/eng@2024-09-25

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