Jane Njeri Karongo & Harisson Munga Karongo (Sued as the Legal Representative of the Estate of Rongo Kiuri & another v Hannah Wanjiku Kamau (Suing as the Legal Representative of the Estate of Kamau Kiuri Karongo [2021] KECA 802 (KLR)
The bottom line
#The Court of Appeal refused a stay of a land judgment because the applicants hid that they had already obtained a conditional stay elsewhere.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants satisfied the principles for grant of stay of execution and/or injunction pending the filing, hearing and determination of the intended appeal
- 2.Whether the applicants' non-disclosure of the pending stay application and conditional stay granted by the trial court disentitled them to the discretionary relief sought
Key legal issues
#Whether the Motion for stay of execution pending appeal could succeed in light of the applicants' non-disclosure and unclean hands
The Motion was dismissed because the applicants failed to disclose that they had applied for and obtained a conditional stay of execution before the trial court, a condition they did not meet and did not disclose; they were thus in unclean hands and unworthy of the court's discretionary exercise.
The applicants sought a stay from the Court of Appeal while simultaneously seeking and obtaining a conditional stay before the trial court, without disclosing either the application or the condition of depositing Ksh.1,000,000 within 60 days. The respondent disclosed these facts and the applicants had no answer. The court treated the non-disclosure as unclean hands and as forum shopping, disqualifying them from discretionary relief, without needing to assess the arguability of the intended appeal.
Legal principles established
#- A party seeking discretionary relief must make full and frank disclosure of material facts, including any parallel proceedings or orders obtained; a litigant who withholds such facts comes to court with unclean hands and does not deserve the court's discretion.
- Forum shopping is not permitted by the courts, particularly where there exists a valid court order granting conditional stay of execution pending appeal.
Court orders
#- 1.The Motion is dismissed
- 2.The applicants shall pay the costs of the Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- ELC No. 25 of 2018
- Jurisdiction invoked
- Rules 5(2)(b) and 47 of the Court of Appeal Rules
Relief refused
#Stay of execution of the ELC judgment and decree dated 30th October 2019 pending the intended appeal, and/or injunction
The applicants came to court with unclean hands by failing to disclose the pending stay application before the trial court and the conditional stay granted to them, and were engaged in forum shopping
Costs
The Motion is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A party who comes to court with unclean hands is underserving of exercise of discretion by the court – See the Supreme Court decision in Council of Governors v Senate & Anor [2014] eKLR:
We discern a situation where the applicants are engaged in forum shopping, something a Court should not permit when there is a valid court order where the applicants were given conditional stay of execution pending appeal.
The applicants are unworthy of any exercise of discretion and the Motion fails and is dismissed with costs.
Issues in the judgment
#The judgment alternates in spelling the respondent's estate name between 'Kamau Kiuri Karongo' (cause title) and 'Kamau Kiuri Murigo' (replying affidavit reference).
The judgment contains typographical errors, including 'underserving' for 'undeserving' and inconsistent rendering of the trial judge's name ('S. Okong'o, J.' and 'S. Okongo, J.').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- M'Mwitari v Gatekia & 3 others (Civil Appeal (Application) E118 of 2022) [2023] KECA 1052 (KLR)[2023] KECA 1052 (KLR)24 Aug 2023
Cite this brief
#Cite this brief
Caselaw, "Jane Njeri Karongo & Harisson Munga Karongo (Sued as the Legal Representative of the Estate of Rongo Kiuri & another v Hannah Wanjiku Kamau (Suing as the Legal Representative of the Estate of Kamau Kiuri Karongo [2021] KECA 802 (KLR)", Case Analysis (2021). Civil Application No. 43 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/802/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.