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ELCDismissedGatundu SRMCC No. 153 of 2011 (OS), Appeal· [2018] KEELC 4349 (KLR)

Teresiah Wairimu v Wanjiku Mwangi [2018] KEELC 4349 (KLR)

Environment and Land Court
2 March 2018
LGL. Gacheru
1,894 words in judgment
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The bottom line

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The Environment and Land Court in Thika refused to pause enforcement of a land judgment because the appellant filed too late and showed no real loss.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (L. Gacheru, J) on a Notice of Motion dated 4th October 2016 by Teresia Wairimu, the Appellant, seeking stay of execution of a judgment of the Resident Magistrate's Court at Gatundu delivered on 6th August 2015 in SRMCC No. 153 of 2011 (OS). The lower court had declared irregular, fraudulent and illegal the entry on the title of Land Parcel No. Ruiru East/Juja East Block 2/1705 reflecting Peter Evans Rungu Mugo (deceased), and ordered the Land Registrar, Thika, to restore the land to its original owner, Wanjiku Mwangi, the Respondent. The application, brought under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, was opposed by way of Grounds of Opposition and a Replying Affidavit, the Respondent asserting she had always been in possession and that the property was never part of the deceased's estate. The court applied the conditions in Order 42 Rule 6(2). It found no substantial loss, since the Appellant had never been in possession of the property; found unreasonable delay, as the instant application followed the withdrawal of an earlier stay application and was filed after the Respondent had initiated execution; and held the security condition inapplicable. The application was dismissed entirely with costs to the Respondent, with a direction that the appeal be listed for directions under Section 79B of the Civil Procedure Act within 30 days.

Key legal issues

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01

Substantial loss

Holding

Not demonstrated - the Appellant was never in possession of the suit property, so no substantial loss would result

Reasoning

The lower court ordered deregistration of the deceased's title and restoration of the Respondent as proprietor. The Respondent claimed possession. Since the Appellant admitted never being in possession, denying stay would not occasion her substantial loss, and courts should not deny successful litigants the fruits of their judgment.

p. 3
02

Unreasonable delay

Holding

Application filed on 4th October 2016 after the earlier stay application was withdrawn and after the Respondent had already initiated execution - unreasonable delay

Reasoning

The Memorandum of Appeal was filed on 27th August 2015 and a stay application on 3rd September 2015, but that application was withdrawn. The instant application came on 4th October 2016, by which time the Respondent had applied for execution. The stay was therefore overtaken by events.

p. 3
03

Security

Holding

Not applicable since the stay would serve no purpose

Reasoning

Having found no substantial loss and unreasonable delay, the security condition under Order 42 Rule 6(2)(b) did not arise for consideration.

p. 3

Legal principles established

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  • The discretion to grant stay of execution must be exercised judicially upon satisfaction of the conditions in Order 42 Rule 6(2)
  • The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal, if successful, is not rendered nugatory
  • Courts should not deprive a successful litigant of the fruits of litigation

Court orders

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  1. 1.Notice of Motion dated 4th October 2016 dismissed entirely with costs to the Respondent
  2. 2.Appellant directed to cause the matter to be listed before the Judge for directions under Section 79B of the Civil Procedure Act within 30 days

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6(1)(2)
  • Civil Procedure Rules 2010Order 50 Rules 1 & 3
  • Civil Procedure Rules 2010Order 25 Rule 1
  • Civil Procedure Act Cap 21Section 3A
  • Civil Procedure Act Cap 21Section 79B

Cases cited (4)

  • Canvass Manufacturers Ltd v Stephen Reuben Karunditu
    Civil Application No. 158 of 1994, (1994) LLR 4853
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nairobi HCC No. 6726 of 1991
  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Jane Jeptoo Sawe v Estate of Sylvester Kimagut Sang Represented by Jennifer Chebet Sang
    Civil App No. 49 of 2015
On appeal from
Resident Magistrate's Court at Gatundu
SRMCC No. 153 of 2011 (OS)
Jurisdiction invoked
Order 42 Rule 6(1)(2), Order 50 Rules 1 & 3 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act Cap 21

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Teresiah Wairimu v Wanjiku Mwangi [2018] KEELC 4349 (KLR)", Case Analysis (2018). Gatundu SRMCC No. 153 of 2011 (OS), Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4349/eng@2018-03-02

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