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ELCDismissedNotice of Motion dated 30th May 2019 (ELC, Kerugoya)· [2019] KEELC 90 (KLR)

Agnes Njoki Kiige Muchira & 3 others v Samson Gachoki Kamiti & another [2019] KEELC 90 (KLR)

Environment and Land Court
13 December 2019
1,008 words in judgment
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The bottom line

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The Kerugoya Environment and Land Court dismissed a bid to pause enforcement of a land judgment because the applicants proved no substantial loss, explained no delay, and offered no security.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Kerugoya by Notice of Motion dated 30th May 2019 seeking stay of execution of the decree in CMCC No. 319 of 2008 pending the hearing of the application and of an intended appeal, together with leave to appeal out of time against a judgment delivered on 18th December 2018, and costs. The 2nd applicant, with authority of his co-applicants, deponed that judgment was delivered in their and their advocate's absence, that they were dissatisfied, and that they had lived on the suit property with nowhere else to go. The 1st respondent opposed, asserting the applicants' lawyer was present at delivery of judgment, that the applicants had not disclosed when they learned of the judgment, and that they owned other land at South Ngariama and a plot at Kutus Village No. 231. The court applied Order 42 Rule 6 of the Civil Procedure Rules, adopting the three conditions: substantial loss, no unreasonable delay, and security, plus the nugatory-appeal principle. It found substantial loss unproved since the respondents' uncontroverted averments showed alternative land; the delay of over five months unexplained, the applicants' advocate not having sworn an affidavit confirming non-notification; and no security offered. The application was dismissed with costs on 13th December 2019.

Key legal issues

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01

Substantial loss

Holding

The applicants failed to prove substantial loss; their claim of living on the suit land was contradicted by uncontroverted evidence of alternative land and a plot

Reasoning

The applicants contended they had farmed the suit land for over a decade and had nowhere else to go. The respondent deponed that they owned another parcel at South Ngariama and a plot at Kutus Village No. 231, with an allotment copy annexed. Those averments were not controverted in the supplementary affidavit, so the court found substantial loss unproved.

p. 2
02

Unreasonable delay

Holding

The delay from 18th December 2018 to 30th May 2019 was not satisfactorily explained

Reasoning

The applicants claimed they and their advocate were not notified of the judgment date, but the advocate did not swear an affidavit confirming this, and the applicants did not explain how they learned of the judgment. The court therefore found the delay unexplained.

p. 2
03

Security for due performance

Holding

No security or undertaking was given for due performance of the decree

Reasoning

Order 42 Rule 6 requires the applicant to furnish such security as the court orders. The court found that the applicants offered none, discharging the third condition for stay.

p. 2

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, no unreasonable delay, and security for due performance of the decree
  • The applicant must also demonstrate that the intended appeal will be rendered nugatory if stay is not granted

Court orders

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  1. 1.The application dated 30th May 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (3)

  • Elena D. Korir Vs Kenyatta University
    (2012) e K.L.R
  • Halal & another Vs Thornton & Thipin Ltd
    (1993) K.L.R 365
  • Hassan Guyo Wakalo Vs Straman, E.A. Ltd
    (2013)
On appeal from
Subordinate Court (CMCC)
CMCC No. 319 of 2008
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal)

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, "Agnes Njoki Kiige Muchira & 3 others v Samson Gachoki Kamiti & another [2019] KEELC 90 (KLR)", Case Analysis (2019). Notice of Motion dated 30th May 2019 (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/90/eng@2019-12-13

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