[2021] KEELC 3495 (KLR)
The trial court held that it lacked jurisdiction to grant a stay of execution after the Court of Appeal had vacated the previous stay orders and deemed the notice of appeal withdrawn. The court found that it was functus officio, having already granted a stay which was subsequently vacated by the appellate court. Any...
Source-derived case information.
- Citation
- [2021] KEELC 3495 (KLR)
- Parties
- Plaintiff: Geofrey Mbugua Dedan; Plaintiff: Hannah Njoki Gathuku & Joseph Mburu Gathuku (suing as the legal administrative of the estate of Gathuku Gichugu (deceased)); Defendant: Joseph Mbugua Dedan Gachumi; Defendant: James Guchugu Gachumi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 268 of 1997
- Procedural Posture
- Stay Application / Ruling on Preliminary Objection to Application for Stay of Execution
- Outcome
- preliminary objection upheld; application struck out with costs to respondents
- Legal Topics
- Stay of Execution, Functus Officio, Jurisdiction of Trial Court, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geofrey Mbugua Dedan
Plaintiff
Hannah Njoki Gathuku & Joseph Mburu Gathuku (suing as the legal administrative of the estate of Gathuku Gichugu (deceased))
Plaintiff
Joseph Mbugua Dedan Gachumi
Defendant
James Guchugu Gachumi
Defendant
Procedural Posture
Stay Application / Ruling on Preliminary Objection to Application for Stay of Execution
Legal Issues
- 1 Whether the trial court has jurisdiction to grant a stay of execution after the Court of Appeal has vacated previous stay orders.
- 2 Whether the trial court is functus officio in respect of the application for stay of execution pending proceedings before the Court of Appeal.
Ratio Decidendi
The trial court held that it lacked jurisdiction to grant a stay of execution after the Court of Appeal had vacated the previous stay orders and deemed the notice of appeal withdrawn. The court found that it was functus officio, having already granted a stay which was subsequently vacated by the appellate court. Any further application for stay should be made before the Court of Appeal, not the trial court. Consequently, the preliminary objection was upheld and the applicants' notice of motion seeking a stay was struck out with costs to the respondents.
Court Disposition
preliminary objection upheld; application struck out with costs to respondents
Orders
- The preliminary objection by the respondents is upheld.
- The Notice of Motion dated 10th July 2019 is struck out.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVEIROMENT AND LAND COURT
AT MILIMANI
ELC NO. 268 OF 1997
GEOFREY MBUGUA DEDAN.................................1ST PLAINTIFF
HANNAH NJOKI GATHUKU & JOSEPH MBURU GATHUKU
(SUING AS THE LEGAL ADMINISTRATIVE OF THE ESTATE OF
GATHUKU GICHUGU (DECEASED) ...................2ND PLAINTIFF
=VERSUS=
JOSEPH MBUGUA DEDAN GACHUMI............1ST DEFENDANT
JAMES GUCHUGU GACHUMI........................2ND DEFENDANT
RULING
1. This is a Ruling in respect of a preliminary objection raised by the Respondents. The preliminary objection was raised against the Applicants’ notice of motion dated 10th July 2019 in which the Applicants seek stay of execution of the decree issued in this case.
2. The Respondents had sued the Applicants in this suit which was filed in 1997. Judgement was delivered on 14th February 2014 in favour of the Respondents. The Applicants filed a Notice of Appeal against the said judgement. The Applicants also obtained stay of execution pending the hearing and determination of the intended appeal. The Applicants did not however file the intended appeal even after they were notified through their advocate of the availability of typed proceedings.
3. The Respondents moved the Court of Appeal for dismissal of the Notice of Appeal. The Court of Appeal in a Ruling delivered on 29th September 2017 allowed the Respondent’s application and deemed the filed Notice of Appeal as having been withdrawn. The Court of Appeal further vacated the stay of execution which had been granted by the trial court on 18th June 2015.
4. After the vacation of the stay orders, the Respondents proceeded to execute the decree in their favour. The Respondents then asked the Applicants to remove structures which fell on the Respondents’ portions. This is what prompted the Applicants to file the Notice of Motion dated 10th July 2019 in which they seek to stay the eviction pending the hearing and determination of a Notice of Motion filed before the Court of Appeal which seeks reinstatement of the Notice of Appeal which was deemed as withdrawn.
5. The Applicants had filed a Notice of Motion before the Court of Appeal seeking review of the Court’s ruling of 29th September 2017. This Application was dismissed for non-attendance. The Applicants then filed a Notice of Motion seeking to set aside the dismissal order. This is the application which is pending before the Court of Appeal for which the current stay is being sought before this court as the Applicants pursue the pending application before the Court of Appeal.
6. The Respondents contend that this Court does not have jurisdiction to entertain the application by the Applicants as the Court is functus officio. The Respondents argue that this court cannot grant stay orders when stay orders which had been issued by this court were vacated by the Court of Appeal. The Respondents argue that this court cannot grant stay pending determination of the proceedings pending before the Court of Appeal.
7. The Applicants argued that though they are at liberty to file the current application before the Court of Appeal, they thought that this court has jurisdiction to grant their prayers as the application before the Court was dismissed for non-attendance and as such the same was not heard on merits.
8. I have considered the preliminary objection by the Respondents as well as the opposition thereto by the Applicants. The only issue for determination is whether this court has jurisdiction to grant stay of execution. This court had granted stay of execution which was to last until the intended Appeal was heard and determined. The intended Appeal was never filed. When the Respondents moved the Court of Appeal to deem the Notice of Appeal as having been withdrawn, that application was allowed and the Court of Appeal proceed to vacate the orders of stay which had been granted by the trial court. This court thus became functus officio and has no jurisdiction to grant stay of execution which stay of execution was vacated by the Court of Appeal. The Applicants should have filed any application for stay before the Court of Appeal. I therefore find that this Court has no jurisdiction to grant any stay. I uphold the preliminary objection by the Respondents and proceed to strike out the Notice of Motion dated 10th July 2019 with costs to the Respondents.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 15TH DAY OF APRIL 2021
E. O.OBAGA
JUDGE
In the Virtual Presence of :-
Mr Kabue for Respondents
M/s Gathua for Applicant
Court Assistant: Okumu
E.O.OBAGA
JUDGE