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ELCDismissedNotice of Motion dated 22nd February 2024 (arising from MC L & E Case No. E263 of 2023)· [2024] KEELC 7059 (KLR)

Nyauma - The Attorney General & another v Mutere (Suing on behalf of Ephalinah Mutere pursuant to power of attorney registered on 9/4/2021) (Environment & Land Miscellaneous Case E006 of 2024) [2024] KEELC 7059 (KLR)

High Court of Kenya
24 October 2024
DOD. O. Ohungo
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega dismissed the applicants' bid for stay of execution and leave to appeal because no appeal had actually been filed.

What this practically means

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Executive summary

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This High Court ruling in Kakamega by D. O. Ohungo J dismissed a Notice of Motion dated 22nd February 2024 by Stafiord Nyauma and Samson Macharia, Advocates cited for contempt by a Subordinate Court in MC L & E Case No. E263 of 2023 (Gillan Mutere v Attorney General). On 8th February 2024, Hon. J. R. Ndururi SPM found they wilfully disobeyed court orders and directed them to appear and show cause against punishment. They sought leave to appeal and stay of proceedings and execution pending an intended appeal, relying on Order 42 rule 6 and Section 75 of the Civil Procedure Act. The Respondent opposed, arguing no appeal existed and none required leave since the ruling was made under Order 40 rule 3. The court framed two issues. First, on leave: applying Section 75 and Order 43 rule 1(1)(u), it held no leave was required because the order was made under Order 40 rule 3; an appeal lay as of right to the High Court within 30 days under Section 16A(1) of the Environment and Land Court Act, and the Applicants, still within time when they filed the motion, may now need extension of time. Secondly, on stay: since no appeal had been filed, stay could not issue in respect of a non-existent appeal, which would be fertile ground for abuse of process. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether leave to appeal was required against the Subordinate Court ruling

Holding

No leave was required; the ruling was made under Order 40 rule 3, and appeals against such orders lie as of right under Order 43 rule 1(1)(u). The Applicants should instead have filed an appeal within 30 days under Section 16A(1) of the Environment and Land Court Act.

Reasoning

The test is whether the order falls within Section 75(1)(a)-(h) of the Civil Procedure Act or Order 43 rule 1(1)(a)-(aa). The impugned ruling arose from an Order 40 rule 3 application, and Order 43 rule 1(1)(u) grants an appeal as of right. Even if leave were needed, Order 43 rule 1(3) requires the application in the first instance to the court making the order within fourteen days, which the Applicants did not do.

p. 3
02

Whether stay of execution pending appeal should issue

Holding

Refused. No appeal had been filed, and stay cannot issue in respect of a non-existent, possibly never-to-be-filed, appeal.

Reasoning

Order 42 rule 6(1) and (2) codifies jurisdiction to grant stay pending appeal. The Applicants had not filed any appeal and might never do so; an open-ended stay pending a hypothetical appeal would invite abuse of court process. The court found no merit in the prayer.

p. 4

Legal principles established

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  • No leave to appeal is required where the order was made under instances listed under Section 75(1)(a)-(h) of the Civil Procedure Act and Order 43 rule 1(1)(a)-(aa) of the Civil Procedure Rules
  • Stay of execution pending appeal cannot be granted where no appeal exists

Court orders

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  1. 1.Notice of Motion dated 22nd February 2024 dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(2)
  • Civil Procedure ActSections 1A, 1B, 3A, 75, 75(1)(a)-(h), 75(1)(g), 79G
  • Civil Procedure Rules, 2010Order 43 rules 1(1), 1(u), 1(3), 2, 3; Order 42 rules 6(1), 6(2); Order 40 rule 3
  • Environment and Land Court Act, 2011Sections 26(3) and (4), 16A(1)
  • Magistrates' Courts Act, 2015Section 9(a)

Cases cited (5)

  • Nicholas Stephen Okaka & another v Alfred Waga Wesonga
    [2022] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Directline Insurance Co. Ltd v Onyango
    (Civil Appeal E345 of 2022) [2022] KEHC 15614 (KLR) (Civ) (24 November 2022) (Ruling)
  • Serephen Nyasani Menge v Rispah Onsase
    [2018] eKLR
On appeal from
Subordinate Court (Magistrates' Court)
MC L & E Case No. E263 of 2023
Jurisdiction invoked
Sections 1A, 1B, 3A and 75 of the Civil Procedure Act; Order 43 rule 1(1) 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, "Nyauma - The Attorney General & another v Mutere (Suing on behalf of Ephalinah Mutere pursuant to power of attorney registered on 9/4/2021) (Environment & Land Miscellaneous Case E006 of 2024) [2024] KEELC 7059 (KLR)", Case Analysis (2024). Notice of Motion dated 22nd February 2024 (arising from MC L & E Case No. E263 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7059/eng@2024-10-24

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