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ELCDismissedNot stated in the judgment (Ruling on Notice of Motion dated 19th March 2024)· [2024] KEELC 6743 (KLR)

Kiberenge v Warunga & 2 others (Environment & Land Case E004 of 2024) [2024] KEELC 6743 (KLR)

Environment and Land Court
11 October 2024
ECE.C. CHERONO
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A stranger to a court case cannot ask the court to pause its orders — the Bungoma Environment and Land Court dismissed the application and awarded costs against the applicant.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Bungoma (E.C. Cherono, J) determined a Notice of Motion dated 19th March 2024 by the Applicant, Benedict Masika Kiberenge, brought under Section 63(e) of the Civil Procedure Act and Order 42 Rule 6(1) and Order 46 Rule 16(b) of the Civil Procedure Rules, 2010. The Applicant, who described himself as a son and beneficiary of the estate of Wanyama Walusaka Wambulwa (deceased), sought stay of execution of all proceedings and consequential orders in Webuye ELC Case No. E006 of 2022, contending that the 1st and 2nd Respondents had entered a consent in that suit to distribute Land Parcel No. Ndivisi/Makuselwa/406 without involving the estate's bona fide beneficiaries. Both Respondents opposed, asserting that the applicant had filed similar, unsuccessful applications in the trial court and other forums, including Bungoma ELCOS No. 2 of 2023, and that the application was an afterthought and an abuse of process. The Applicant filed no submissions. Framing a single issue, the court noted that the Applicant's earlier application in the trial court, seeking stay and other relief, had been disallowed by a ruling dated 9th June 2023 which was never appealed. Critically, the court held that the Applicant is not a party to the proceedings in which he seeks stay and is therefore precluded from agitating any action in them, and further that there was a disconnect between the cause of action and the prayer for stay. The application was dismissed with costs.

Key legal issues

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01

Whether stay of execution of proceedings and consequential orders in Webuye PMCC ELC E006/2022 should issue

Holding

The application was dismissed for lack of merit as the applicant is a stranger to the proceedings and the relief sought is disconnected from the cause of action

Reasoning

The applicant had earlier sought similar relief in the trial court and that ruling was never appealed. The application sought stay in a different matter involving different parties, in which the applicant is not a party, precluding him from agitating any action in it. Further, there was a disconnect between the cause of action and the prayer for stay, rendering the application incurably defective.

p. 3

Legal principles established

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  • A party who is not a party to proceedings cannot agitate for stay of execution in those proceedings
  • Every application must be predicated on the prayers in the suit

Court orders

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  1. 1.The application dated 19th March 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 63(e)
  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 46 Rule 16(b)

Cases cited (1)

  • Simiyu Wenani Werunga v. Joyce Nasimiyu Wanjala
    Webuye PMCC ELC 6/21
Jurisdiction invoked
Section 63(e) of the Civil Procedure Act and Order 42 Rule 6(1) and Order 46 Rule 16(b) of the Civil Procedure Rules, 2010

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, "Kiberenge v Warunga & 2 others (Environment & Land Case E004 of 2024) [2024] KEELC 6743 (KLR)", Case Analysis (2024). Not stated in the judgment (Ruling on Notice of Motion dated 19th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6743/eng@2024-10-11

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