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ELCDismissedHigh Court Civil Case No. 1029 of 1982 (Notice of Motion dated 8th August 2013)· [2014] KEELC 556 (KLR)

Joackim Ngugi Kiarie v G Z Ulyate & 6 others [2014] KEELC 556 (KLR)

High Court of Kenya
23 May 2014
JMJ. M. Mutungi
1,834 words in judgment
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The bottom line

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The High Court dismissed the Defendants' application to pause execution of an adverse possession judgment because they waited too long and showed no substantial loss.

What this practically means

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Executive summary

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Following a judgment delivered on 2nd August 2012 by Hon. Justice Mbogholi Msagha decreeing Joakim Ngugi Kiarie the owner of L.R. 336/17, Baba Dogo Nairobi by adverse possession, and subsequent orders by Lady Justice Gitumbi on 1st August 2013 dispensing with production of the original title, the Defendants sought a stay of execution pending Civil Appeal No. 131 of 2013 by Notice of Motion dated 8th August 2013, citing sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 52. They argued the appeal would be rendered nugatory if they were evicted and they ultimately succeeded. The Plaintiff opposed, contending the application was an afterthought, that the appeal was filed out of time, and that he had already obtained rates clearance as the rateable owner after litigation lasting over 30 years. J.M. Mutungi J held that Order 22 Rule 52 was inapplicable and that the proper provision was Order 42 Rule 6, requiring demonstration of substantial loss, absence of undue delay and offer of security. The court found the Defendants had delayed over a year after judgment, had not demonstrated substantial loss since they are not registered owners, and that the Plaintiff should not be held back from enjoying the fruits of his judgment. The court declined to rule on the competency or prospects of the pending appeal, reserving those questions for the Court of Appeal. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether stay of execution pending appeal was warranted under Order 42 Rule 6

Holding

Application dismissed; applicants failed on substantial loss and undue delay

Reasoning

The court found the applicants filed the application over a year after judgment, despite receiving proceedings in January 2013, showing laxity. They are not registered owners of the suit property and their adverse possession claim was dismissed, so they did not demonstrate substantial loss. The competency and chances of success of the appeal are matters for the Court of Appeal.

p. 3
02

Correct statutory basis for the application

Holding

Order 22 Rule 52 was inapplicable; the proper provision is Order 42 Rule 6

Reasoning

Order 22 Rule 52 relates to stay where an objection to attachment has been made under Rule 51. The applicants sought stay pending appeal, which is governed by Order 42 Rule 6, whose conditions the court applied.

p. 2

Legal principles established

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  • An appeal does not operate as an automatic stay of execution; the applicant must satisfy the conditions of Order 42 Rule 6(2): substantial loss, no undue delay, and security
  • A successful party is entitled to enjoy the fruits of his judgment until it is reversed

Court orders

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  1. 1.The Defendants' Notice of Motion dated 8th August 2013 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 22 Rules 51, 52; Order 42 Rule 6(1) and (2); Order 51 Rule 1
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Orders 22 Rule 52 and 51 Rule 1 of the Civil Procedure Rules (properly Order 42 Rule 6)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joackim Ngugi Kiarie v G Z Ulyate & 6 others [2014] KEELC 556 (KLR)", Case Analysis (2014). High Court Civil Case No. 1029 of 1982 (Notice of Motion dated 8th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/556/eng@2014-05-23

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