[2021] KEELC 2902 (KLR)
The court found that the plaintiff had not lodged a valid notice of appeal or an appeal in the Court of Appeal, which is a prerequisite for the grant of a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. Furthermore, the judgment delivered was negative in nature, dismissing the plaintiff's...
Source-derived case information.
- Citation
- [2021] KEELC 2902 (KLR)
- Parties
- Plaintiff: Kioko Muthoka; Defendant: Kalembwani Ngaamba Farmers Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 342 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Stay of Execution, Appeals Process, Judgment Enforcement, Costs Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kioko Muthoka
Plaintiff
Kalembwani Ngaamba Farmers Company Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the plaintiff is entitled to an order of stay of execution of the judgment and taxation of costs pending appeal.
- 2 Whether the absence of a valid notice of appeal precludes the grant of a stay of execution.
Ratio Decidendi
The court found that the plaintiff had not lodged a valid notice of appeal or an appeal in the Court of Appeal, which is a prerequisite for the grant of a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules. Furthermore, the judgment delivered was negative in nature, dismissing the plaintiff's suit, and therefore not capable of execution except as to costs. As such, even if a notice of appeal had been filed, a stay of execution would not be appropriate. The application for stay was thus found to be unmeritorious and dismissed.
Court Disposition
application dismissed
Orders
- The application dated 12th February, 2021 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 342 OF 2012
KIOKO MUTHOKA ....................................................................................PLAINTIFF
VERSUS
KALEMBWANI NGAAMBA FARMERSCOMPANY LIMITED.......DEFENDANT
RULING
1. In the Notice of Motion dated 12th February, 2021, the Plaintiff has sought for the following orders:
a.That there be a stay of execution of the Decree herein and or of the Taxation of Bill of Costs herein and all consequential orders be stayed pending the hearing and determination of this Application.
2. The Application is supported by the Affidavit of the Plaintiff who has deponed that on 31st January, 2020, the court pronounced its Judgment in this matter; that being dissatisfied with the said Judgment, he lodged an Application in the Court of Appeal for leave to Appeal out of time and that the Application is still pending.
3. According to the Plaintiff, if the Defendant’s Bill of Costs dated 22nd September, 2020 is taxed and execution carried out, it would result in him suffering irreparable loss and that the intended Appeal will be rendered nugatory.
4. The Defendant did not file a response to the Application. I have considered the Application before me. The only issue to determine is whether an order of stay of execution of the Judgment of 31st January, 2020 should issue.
5. The law governing a stay of execution of a decree or order is provided for by Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows:
“(2) No order for stay of execution shall be made under sub rule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
6. The record shows that on 31st January, 2020, this court delivered its Judgment in this matter. In the Judgment, the court dismissed the Plaintiff’s suit on the ground that the Plaintiff had not proved his case on a balance of probabilities.
7. In the Affidavit, the Plaintiff has stated that he is waiting for the Court of Appeal to determine his Application to lodge the Notice of Appeal out of time. In a nutshell, the Plaintiff is acknowledging that currently, neither the Notice of Appeal nor the Appeal itself has been lodged in the Court of Appeal.
8. It is trite that under Order 42 Rule 6(2) of the Civil Procedure Rules, an order of stay of execution can only be granted by this court as and when a valid Notice of Appeal has been lodged in this court. Indeed, having admitted that there is no valid Appeal or Notice of Appeal filed, the Plaintiff is not entitled to an order of stay.
9. Even if the Plaintiff had lodged a Notice of Appeal within the requisite time, an order staying the execution of the Judgment of this court would still not have been issued. This is so because the Judgment that this court delivered on 12th February, 2021 is negative in its nature. The said Judgment is not capable of being executed except for costs.
10. That being so, it is my finding that the Application dated 12th February, 2021 is unmeritorious. The Application is dismissed but with no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 11TH DAY OF JUNE, 2021.
O. A. ANGOTE
JUDGE