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ELCPartially AllowedGithongo ELC No. 45 of 2018 (Application dated 28.6.2019)· [2019] KEELC 75 (KLR)

Anita Gakii M’Mwongera v David Mbaya [2019] KEELC 75 (KLR)

Environment and Land Court
18 November 2019
LMLucy N. Mbugua
633 words in judgment
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The bottom line

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A Kenyan land court stopped execution of a judgment for one year because the applicant had lived on the disputed land since 1990.

What this practically means

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Executive summary

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The applicant sought a stay of execution of the judgment and decree in Githongo ELC No. 45 of 2018 delivered on 31.5.2019, pending an intended appeal. By an application dated 28.6.2019 supported by her affidavit, she contended that on 11.6.2019 the respondent, allegedly in the company of hired goons, sprayed and destroyed half an acre of her nappier grass crop with herbicide; that he threatened to demolish her house on the suit land upon lapse of the 30-day right of appeal; and that execution would render the intended appeal nugatory and leave her homeless and destitute, as she had no other home. She had applied for typed proceedings to file the appeal and had already filed a memorandum of appeal. The respondent was served but filed no response, so the application was unopposed. The court perused the judgment of 31.5.2019 and observed that the applicant had testified she had lived on the suit land since 1990, and therefore stood to suffer substantial loss if stay were not granted. The court allowed the application, granting a stay of execution for a period of one year only, rather than until determination of the appeal, and ordered that costs of the application abide the outcome of the appeal. Judgment was delivered in open court at Meru on 18 November 2019 before Hon. Lucy N. Mbugua, ELC Judge, with Ms. Gitonga appearing for the appellant and Kananu as court assistant.

Key legal issues

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01

Whether substantial loss was demonstrated to justify stay of execution

Holding

Stay granted for one year because the applicant, having lived on the suit land since 1990, would suffer substantial loss if execution proceeded

Reasoning

The court perused the underlying judgment of 31.5.2019 and noted the applicant's testimony that she had lived on the suit land since 1990. On that basis it found she stood to suffer substantial loss, satisfying the key condition for stay pending appeal. The application was unopposed, the respondent having been served but filing no response, and the court allowed the stay limited to one year with costs abiding the appeal.

p. 2

Legal principles established

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  • A party who has lived on suit land stands to suffer substantial loss if execution is not stayed pending appeal

Court orders

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  1. 1.Stay of execution of the judgment and decree in Githongo ELC No. 45 of 2018 delivered on 31.5.2019 granted for a period of ONE YEAR
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Environment and Land Court, Githongo
ELC No. 45 of 2018
Jurisdiction invoked
Inherent jurisdiction to grant stay of execution pending appeal (application under the court's powers; no specific provision cited in the judgment)

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, "Anita Gakii M’Mwongera v David Mbaya [2019] KEELC 75 (KLR)", Case Analysis (2019). Githongo ELC No. 45 of 2018 (Application dated 28.6.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/75/eng@2019-11-18

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