[2025] KEELC 52 (KLR)

Wambugu (Suing on Behalf of the Estate of the Late Jacob Juma) & 2 others v Njiru & another (Environment & Land Case 729 of 2011) [2025] KEELC 52 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 52 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 729 of 2011

MD Mwangi, J

January 16, 2025

Between

Miriam Wairimu Wambugu (Suing on Behalf of the Estate of the Late Jacob Juma)

1st Plaintiff

Park Health Centre Limited

2nd Plaintiff

Nectel (K) Limited

3rd Plaintiff

and

Jane Wanja Njiru

1st Defendant

Wanjiku Ithondeka

2nd Defendant

Ruling

(In respect to the 1st Defendant/Applicant’s Notice of Motion dated 13th September 2024 brought under the provisions of Order 42 rule 6 of the Civil Procedure Rules & Sections 1A, 1B and 3A of the Civil Procedure Act) Background. 1. The 1st Defendant in her Notice of Motion dated 13th September 2024 prays for orders that the Honourable court be pleased to grant an order of stay of execution of its judgment and decree issued on 31st July 2024 and all consequential orders thereof pending hearing and determination of Nairobi Court of Appeal Civil Application No. E458 of 2024 (Jane Wanja Njiru –vs- Miriamu Wairimu Wambugu (suing on behalf of the Estate of Jacob Juma and 3 others) dated 5th September 2024 filed by the 1st Defendant/Applicant at the Court of Appeal in Nairobi.

2. The application is premised on the grounds on the face of it and the supporting affidavit of Jane Wanja Njiru sworn at Nairobi on 13th September 2024. The Applicant explains that she has filed and served an application at the Court of Appeal dated 5th September 2024 seeking orders of stay of execution of the judgment and decree of this court. The application was certified urgent by the Court of Appeal and directions issued appropriately in readiness for empanelment of a bench to hear and determine the application. The Applicant thereof seeks a stay of execution of the judgment and decree of this court pending hearing and determination of the application before the Court of Appeal.

3. The application is opposed by the 1st Plaintiff Miriam Wairimu Wambugu through her replying affidavit sworn at Nairobi on the 26th September 2024. The deponent deposes that she already took vacant possession of the suit property pursuant to the judgment of this court after expiry of the forty five (45) days within which the 1st Defendant was directed to deliver vacant possession by this court.

4. The deponent further avers that the decree issued herein was on 11th September 2024 registered against the title to the suit property and the transfer of the suit property to the 1st Defendant cancelled. In essence, the decree of the court has been executed already.

5. The 1st Plaintiff further points out that the 1st Defendant has filed a similar application before the Court of Appeal in which directions were given on 10th September 2024. She prays for the dismissal of the application.

Issues for determination. 6. The application by the 1st Defendant/Applicant raises a fundamental legal question; whether Order 42 rule 6 of the Civil Procedure Rules makes provisions for a stay of execution by the Court appealed from pending determination of an application for stay of execution by the Court appeal to.

Determination. 7. Order 42 rule 6 (1) and (2) of the Civil Procedure Rules provides as follows.1. “No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the Court appealed from any order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.2. No order of 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; andb.Such security as the court orders for the due performance of such decree or order as many ultimately on him has been given by the Applicant.”

8. My reading of rule 6 of Order 42 is that an Appellant has an option to either file the application for stay of execution of the judgment or order appealed from before the court that made the impugned judgment or order OR before the court to which the appeal is preferred. Additionally, where the Applicant makes the application before the court appealed from, he still has the liberty to apply to the court appealed to, to vary or set aside the order (either granting or refusing to grant the stay of execution).

9. I see nothing in rule 6 allowing the court appealed from to grant an order of stay pending determination of an application for stay of execution by the court appealed to. No wonder the Applicant invoked the inherent jurisdiction of this court and the overriding objecting principle (oxygen principle).

10. The Court in the case of R -vs- NGCDF Board and another (2017) eKLR, discussed the overriding objecting principle in the following words,“The double O’s, in the phrase overriding objectives are what coined what is today famously known as the term oxygen principle. In Hanker Trading Company Limited –vs- ELF Oil Kenya Limited, perhaps the first case to be grounded on the new provisions, the Appellate Jurisdiction Act (Sections 3A and 3B), it was held that Section 1A of the Civil Procedure Act came in to provide facilitation of just; expeditious, and proportionate resolution of civil disputes in Kenya, as the overriding objective of the Act.Considering the above provisions which introduced the oxygen principle, the court in Kamani –vs- KACC drew comparisons to the wolf reforms which introduced similar provisions in England in 1998 by way of the Civil Procedure Rules and further considered the English case of Bigizi –vs- Bank Leisure in which Lord Wolf himself talked about the concept of overriding principles objective as follows;“Under the (Civil Procedure Rules) the position is fundamentally different. As rule 1. 1 makes clear the (rules) is a new procedural code with the overriding objective of enabling the court to deal with cases justly. The problem with the position prior to introduction of the (rules) was that often the court had to take draconian steps such as striking out the proceedings…”

11. It must however be noted that the overriding objective come in to remedy procedural aspects only. As observed by Sir Dinshah Mullah in the ‘Code of Civil Procedure’,“The Code of Civil Procedure is not exhaustive. The simple reason being that legislature is incapable of contemplating all the possible circumstances which may arise in future litigation, and consequently for providing the procedure for them. The principle is well established that when the code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court comes to its aid to act ex debito justiciae for doing real and substantive justice between the parties. However, the power, under this Section, relates to matters of Procedure. If ordinary rules of procedure result in injustice, and there is no other remedy, they can be blocked in order to achieve the ends of justice”.

12. The issue before the court is not one of procedure but substance. The oxygen principle cannot come to the aid of the Applicant. It cannot confer jurisdiction to the court where none exists.

13. The same applies to the inherent power of the court as pointed out in the case of The National Union of Metal Workers of South Africa and others –vs- Fry’s Metal (Pty) Limited, where the court aptly stated that;“While it is true that this court’s inherent power to protect and regulate its own process is not limited, it does not for instance extend to the assumption of jurisdiction not conferred upon it by statute.”

14. The extent of inherent powers of the court, is also elaborately explained in the Halsbury’s Laws of England 4th Edn. Volume 37 paragraph 14, in the following words;“The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively as a court of law. The overriding feature of the inherent jurisdiction of the court is that it is part of the procedural law, both Civil and Criminal and not part of the substantive Law. The overriding feature of the inherent jurisdiction of the court is that it is part of the procedural law, both civil and criminal, and not part of the substantive law.”

15. The authors further observe that,“The inherent jurisdiction of the court enables it to exercise control over process by regulating its proceedings by preventing the abuse of the process and by compelling the observance of the process. In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary, whenever it is just or equitable to do so in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to justice between the parties and to secure a fair trial between them.”

16. From the foregoing, the Applicant cannot seek refuge either under the oxygen principles or under the inherent powers of the court to seek that which is not provided for under law. She chose to lodge her application before the Court of Appeal, she must prosecute it there and not before this court.

17. The court finds and holds that the Applicant’s application before it has no basis in law. It is hereby dismissed with costs to 1st Plaintiff.It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Nelson Havi for the PlaintiffsMs. Maina h/b for Mr. Nderitu for the 1st Defendant/ApplicantN/A for the 2nd DefendantCourt Assistant: MpoyeM.D. MWANGIJUDGE