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ELCDismissedMiscellaneous Application arising from Appeal against Judgment in Kyuso PMCC No. 7 of 2013· [2017] KEELC 2745 (KLR)

Muthui Kiteme v Mwonga Maithya Muumbo [2017] KEELC 2745 (KLR)

High Court of Kenya
19 May 2017
MGMARY M. GITUMBI
1,168 words in judgment
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The bottom line

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Kenya's High Court refused to pause a land judgment because the appellant could not prove he would actually suffer real loss.

What this practically means

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Executive summary

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This was a Notice of Motion by the Appellant, Muthui Kiteme, seeking stay of execution of the judgment delivered on 13th May 2014 in Kyuso PMCC No. 7 of 2013 (Mwonga Maithya v Muthui Kiteme) pending his appeal. The application was anchored on Order 42 rule 6 of the Civil Procedure Rules, 2010. The applicant argued that he lodged the appeal and filed the Record of Appeal promptly, that an earlier similar application in the lower court was denied, that delay in moving the court was caused by loss of the court file (requiring reconstruction proceedings allowed on 9th December 2015), and that he and his family reside on the suit property and risk eviction, so the appeal would be rendered nugatory. The respondent, Mwonga Maithya Muumbo, opposed the application, asserting that the applicant does not reside on the suit property but only cultivates and grazes there; that only an unoccupied house built by the applicant's son stands on it; that the applicant has his own land elsewhere; and that security for costs of about Kshs. 400,000/- and restraints on cultivation, grazing and construction should be imposed if stay were granted. The court, applying the substantial-loss test, found the applicant's residence claim contradicted and unrebutted, and held that no substantial loss was demonstrated. It therefore did not consider delay or security. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Appellant/Applicant demonstrated substantial loss to warrant stay of execution under Order 42 rule 6(2)

Holding

No substantial loss was demonstrated; uncontroverted evidence showed the applicant does not reside on the suit property and faces no eviction

Reasoning

The court applied Order 42 rule 6(2) of the Civil Procedure Rules, requiring satisfaction that substantial loss may result and that the application was made without unreasonable delay. The applicant claimed he and his family reside on the suit property and risk eviction. The respondent contradicted this, showing only an unoccupied house built by the applicant's son and that the applicant lives and farms elsewhere. The applicant did not rebut these assertions, so the court believed the respondent. Having found no substantial loss, the court declined to consider delay or security.

p. 2

Legal principles established

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  • A party seeking stay of execution must demonstrate, with particulars, the substantial loss it will suffer if stay is not granted; mere assertion that the appeal will be rendered nugatory is insufficient

Court orders

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  1. 1.The Notice of Motion dated 19th January seeking stay of execution of the Judgment delivered on 13th May 2014 in Kyuso PMCC No. 7 of 2013 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1) and (6)
  • Civil Procedure Rules, 2010Order 42 rule 6(2)

Cases cited (1)

  • Machira t/a Machira & Co vs. East African Standard No.2
    (2002) 2 KLR 63
On appeal from
Principal Magistrates' Court (Kyuso)
PMCC No. 7 of 2013
Jurisdiction invoked
Order 42 rule 6(1), (2) and (6) of the Civil Procedure Rules, 2010 (appeal from the court below)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muthui Kiteme v Mwonga Maithya Muumbo [2017] KEELC 2745 (KLR)", Case Analysis (2017). Miscellaneous Application arising from Appeal against Judgment in Kyuso PMCC No. 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2745/eng@2017-05-19

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