Njuguna v Macharia (Environment and Land Appeal E022 of 2024) [2024] KEELC 6796 (KLR)
The bottom line
#A Kenyan court struck out a stay of execution application because the applicant skipped the required first step of asking the trial court before going to the appellate court.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 42 Rule 6(1) of the Civil Procedure Rules
The step of first approaching the trial court for stay is compulsory; the appellate court has jurisdiction only where the trial court has granted or refused a stay application
The court analysed Order 42 Rule 6(1) and held that an appellant must apply first to the trial court. The phrase 'whether the application for such stay shall have been granted or refused by the court appealed from' presupposes the trial court's consideration. The court contrasted Rule 41 of the Court of Appeal Rules, which expressly dispenses with that step, and held that no such dispensation exists for appeals to the ELC. Bypassing the trial court amounts to forum shopping and violates the rule of law.
Validity of uncommissioned annexures to the supporting affidavit
The annexures were mere photocopies not commissioned or serialized and must be disregarded
Under Rule 9 of the Oaths and Statutory Declarations Rules, exhibits must be securely sealed and marked with serial letters of identification by the Commissioner for Oaths. The judgment held that unmarked, unsigned, unstamped documents do not form part of the oath and cannot be relied upon as evidence; the court disregarded them.
Injunction pending appeal under Order 42 Rule 6(6)
An injunction pending appeal is tied to the reliefs sought in the trial court; absent special circumstances such as new threats of damage, the applicant should confine himself to a stay application
The court held that a prayer for injunction on appeal cannot be used to circumvent the stay requirements of Order 42 Rule 6(1). The applicant must show special circumstances arising after the trial court became functus officio, threatening damage to the subject matter, which a stay order cannot remedy. No such facts were demonstrated in the supporting affidavit.
Legal principles established
#- An applicant for stay of execution pending appeal must first apply to the trial court before moving the appellate court; skipping the trial court is forum shopping and renders the application incompetent.
- Exhibits annexed to an affidavit must be commissioned, marked and serialized by the Commissioner for Oaths; uncommissioned photocopies are disregarded.
Court orders
#- 1.The Notice of Motion dated 21/09/2024 struck out with costs to the Respondent
- On appeal from
- Kitale Magistrates Court
- Kitale MCELC No. 141 of 2022
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 40 and 42 of the Civil Procedure Rules, Land Act 2012 and Article 40 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munubi v Munubi & 4 others (Environment and Land Appeal 4 of 2024) [2025] KEELC 4489 (KLR)[2025] KEELC 4489 (KLR)12 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Njuguna v Macharia (Environment and Land Appeal E022 of 2024) [2024] KEELC 6796 (KLR)", Case Analysis (2024). Kitale ELC Appeal arising from Kitae MCELC No. 141 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6796/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.