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ELCAllowedNot stated in judgment (Notice of Motion dated 7th November 2018)· [2019] KEELC 1038 (KLR)

Rose Njiru (Acting as the legal representative of the Estate of M’Nceeri M’rutere) v John Nicholas Muthuri [2019] KEELC 1038 (KLR)

Environment and Land Court
31 October 2019
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped eviction from family land until an appeal is decided, because winning later would be pointless if she lost her home first.

What this practically means

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Executive summary

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By Notice of Motion dated 7 November 2018, the plaintiff, Rose Njiru, sought stay of execution of a judgment delivered against her on 29 August 2018 and of the consequential decree issued on 25 October 2018, pending her intended appeal to the Court of Appeal at Nyeri (Nyeri Civil Appeal No. 232 of 2018), with costs of the application to abide the appeal's outcome. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010. She argued she had lived on, utilised and developed the suit land for over 47 years, had buried her late husband, son and granddaughter on it, filed her notice of appeal timeously on 5 September 2018, and was willing to offer security. The respondent opposed, contending there was inordinate delay (the application filed only after he threatened execution), that the applicant had adjacent land of her own bearing most of the developments shown in her photographs, and that no security had been offered. The court found no undue delay, noted that the respondent was not in occupation of the suit land and so would suffer no irreparable harm, and held that execution before the appeal's determination would render the appeal nugatory since the applicant would be evicted from land she had developed. The court also observed that the applicant had filed her appeal and was serious about pursuing it. All conditions under Order 42 Rule 6 were held satisfied. The application dated 7 November 2018 was allowed in terms of prayers (3) and (4), staying execution pending the appeal, with costs to abide the appeal's outcome.

Key legal issues

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01

Whether there was unreasonable delay in filing the stay application

Holding

There was no undue delay despite the application being filed about two and a half months after judgment.

Reasoning

Judgment was delivered on 29 August 2018 and the application lodged on 7 November 2018, roughly two and a half months later. The court found this did not amount to undue delay, and held that the fact the application was filed after the respondent intimated an intention to execute did not alter that conclusion.

p. 3
02

Whether substantial loss would result and whether the appeal would be rendered nugatory

Holding

Substantial loss was demonstrated: the applicant would be evicted from land she has developed, rendering the appeal nugatory, while the respondent, not in occupation, would suffer no irreparable harm.

Reasoning

The court found it undisputed that the respondent was not in occupation of the suit land, so he would suffer no irreparable harm. Conversely, affidavit evidence showed the applicant had effected many developments and would be evicted if the decree were executed before the appeal was finalised, which would render the appeal nugatory. A family burial ground and 47 years of occupation were emphasised in submissions.

p. 3

Legal principles established

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  • Every aggrieved party has a right to lodge an appeal, and where an appeal is duly filed and pursued, stay of execution may properly issue under Order 42 Rule 6.

Court orders

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  1. 1.The application dated 7/11/2018 is allowed in terms of prayers (3) and (4) thereof, namely stay of execution of the judgment delivered on 29/8/2018 and the consequential decree issued on 25/10/2018 pending hearing and determination of the intended appeal in the Court of Appeal at Nyeri
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (3)

  • County Government of Kwale vs. Saumu Said Nyanya & 3 others
    (2017) eKLR
  • Waweru Mwaura vs. Mary Wanjiru Njenga
    (2016) eKLR
  • Amal Hauliers Limited vs. Abdulnasir Hassan
    (2017) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending 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, "Rose Njiru (Acting as the legal representative of the Estate of M’Nceeri M’rutere) v John Nicholas Muthuri [2019] KEELC 1038 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 7th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1038/eng@2019-10-31

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