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ELRCDismissedMeru CMCC No. 84 of 2016 (Appeal therein)· [2019] KEELRC 341 (KLR)

Charles Nteere Mboroki v James Gichuru & another [2019] KEELRC 341 (KLR)

Environment and Land Court
13 November 2019
LMLucy N. Mbugua
1,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, who had lost his suit before the trial court in Meru CMCC No. 84 of 2016 on 9 May 2019 and was facing eviction from land he claimed to have occupied for over 50 years, moved the Environment and Land Court at Meru by notice of motion dated 15 May 2019 seeking a temporary stay of execution pending inter-partes hearing and a substantive stay pending appeal. The dispute was between siblings, children of the late Henry M'Mboroki Mukindia, over parcels of land being Ntima/Igoki/991, 2018 and the subdivisions 6397, 6398 and 6399. The respondents, principally through the replying affidavit of James Gichuru, opposed the application, asserting registered ownership of the parcels, denying the applicant's alleged 50-year occupation and extensive developments, and contending that the applicant had in May 2014 forcefully evicted them and taken possession. In a further affidavit the applicant maintained that execution would render his family homeless and the appeal nugatory. In a short ruling, the court applied the principles in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, holding that a stay of execution is an interim order that delays performance of positive obligations in a decree and presupposes the existence of a positive order to stay. Because the applicant's suit had been dismissed outright, the parties reverted to their pre-suit positions and there was nothing to stay, the interlocutory orders having lapsed with the suit. The court dismissed the application with costs to the respondent.

Key legal issues

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01

Whether stay of execution can issue where the decree contains no positive order to be performed

Holding

No; a stay of execution requires a positive order capable of being stayed. Since the applicant's suit was dismissed and no orders for performance of an act were made (save discharge of interlocutory orders which cannot subsist once the suit is gone), there was nothing to stay.

Reasoning

Relying on Kantai JA in Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, the court held that stay of execution delays performance of positive obligations in a decree and presupposes the existence of a 'positive order'. A dismissal places the parties back in the position they occupied before the suit, leaving no obligation whose execution can be stayed.

p. 2

Legal principles established

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  • A stay of execution presupposes the existence of a positive order - an order for performance of obligations in a decree - capable of being delayed or stayed

Court orders

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  1. 1.The application dated 15.5.2019 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Cases cited (2)

  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
On appeal from
Chief Magistrate's Court, Meru
Meru CMCC No. 84 of 2016
Jurisdiction invoked
Appellate/stay jurisdiction over an appeal from the trial court in Meru CMCC No. 84 of 2016 (no specific constitutional or statutory provision invoked in the judgment)

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, "Charles Nteere Mboroki v James Gichuru & another [2019] KEELRC 341 (KLR)", Case Analysis (2019). Meru CMCC No. 84 of 2016 (Appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/341/eng@2019-11-13

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