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ELCDismissedNotice of Motion dated 1st November 2019 (suit re plot 37 Nyakoe Market)· [2019] KEELC 690 (KLR)

Beatrice Mghamba Onyonka v Beatrice Mghamba Onyonka [2019] KEELC 690 (KLR)

Environment and Land Court (High Court-level)
19 November 2019
2,425 words in judgment
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The bottom line

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A Kenyan court dismissed a landowner's attempt to delay eviction, ruling that stay applications must be filed promptly and supported by evidence on every legal condition.

What this practically means

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Executive summary

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The defendant in a land dispute over plot 37 Nyakoe Market in Kisii County brought a Notice of Motion dated 1st November 2019 under Sections 1A and 1B of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of execution of the court's ruling of 5th April 2019 pending an intended appeal to the Court of Appeal. The ruling had adopted the report of the Land Registrar and County Surveyor, found the applicant in unlawful occupation of the respondent's plot, and ordered him to vacate within 30 days failing which eviction would issue. The applicant, aged 73, argued he would suffer substantial loss as the plot was his home and business premises, and offered security for costs. The respondent opposed, pointing to the applicant's inordinate delay of over seven months, absence of a memorandum of appeal, failure to request certified proceedings, and the earlier review application he withdrew on 5th November 2019. Justice J. M. Onyango framed two issues: whether the applicant met the Order 42 Rule 6 threshold and costs. Applying the settled conditions - substantial loss, no unreasonable delay, and security, all of which must coexist - the court found the delay inexcusable, no substantial loss demonstrated (the applicant being in unlawful occupation and unable to use his age to gain advantage), security inadequately explained, and no demonstration of an arguable appeal. Invoking the principle that a successful party is entitled to the fruits of judgment, the court dismissed the application with costs to the respondent on 19th November 2019.

Key legal issues

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01

Whether the application for stay was brought without undue delay

Holding

The application filed more than 7 months after the ruling was inexcusably delayed

Reasoning

The ruling was delivered on 5th April 2019 and the application filed on 1st November 2019. Apart from filing a Notice of Appeal on 17th April 2019, the applicant gave no explanation for the delay, despite the court's power to order a stay even before a formal application.

p. 2
02

Whether the applicant demonstrated substantial loss

Holding

No substantial loss was demonstrated; the applicant was in unlawful occupation and age alone cannot excuse him

Reasoning

The Land Registrar and County Surveyor's report, adopted by the court, established that plot 37 Nyakoe Market is registered in the respondent's name and located differently from the parcel the applicant claims to have bought. The applicant's advanced age and illness could not be used to gain advantage over the respondent.

p. 3
03

Whether the applicant furnished and demonstrated capacity for security for costs

Holding

The applicant's bare offer of security was insufficient; he did not explain his business or income to enable the court to quantify security

Reasoning

Though the applicant claimed to carry on business on the suit property, he never explained what business he conducted or his monthly income. The court could not doubt his ability but held he ought to have done more to convince it of his capacity to furnish security.

p. 3
04

Whether the appeal is arguable and would be rendered nugatory

Holding

No material demonstrated an arguable appeal; no memorandum of appeal was annexed and the earlier review application suggested uncertainty

Reasoning

Apart from the Notice of Appeal, the applicant produced no memorandum of appeal or proof of applying for certified proceedings. His post-notice application for review, later withdrawn, indicated uncertainty about his chances on appeal.

p. 3

Legal principles established

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  • The three conditions for stay of execution under Order 42 Rule 6 must all be met simultaneously

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure Rules 2010Order 42 Rule 6(1), (2), (3) & (4)

Cases cited (6)

  • Kiplangat Kotut v Rose Jebor Kipngok
    (2015) eKLR
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
  • Silverstein vs. Chesoni
  • Bashir Godana v Fatuma Godana Tupi
    (2018) eKLR
  • Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
    [2002] KLR 63
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act and Order 42 Rule 6(1), (2), (3) & (4) of the Civil Procedure Rules 2010

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, "Beatrice Mghamba Onyonka v Beatrice Mghamba Onyonka [2019] KEELC 690 (KLR)", Case Analysis (2019). Notice of Motion dated 1st November 2019 (suit re plot 37 Nyakoe Market). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/690/eng@2019-11-19

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