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ELCAllowedNot stated in the judgment· [2019] KEELC 1853 (KLR)

Florence Mumbi Njine v Kefa Oketchi Muinde [2019] KEELC 1853 (KLR)

Environment and Land Court
10 July 2019
GOG.M.A. Ongondo
1,215 words in judgment
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The bottom line

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A Kenyan landowner won a stay of execution by proving she'd suffer substantial loss, acted quickly, and offered Kshs. 200,000 as security.

What this practically means

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Executive summary

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The plaintiff, Florence Mumbi Njine, moved the Environment and Land Court at Migori by Notice of Motion dated 4th February 2019 under Order 42 Rule 6 of the Civil Procedure Rules, 2010, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Section 150 of the Land Act and constitutional articles, seeking stay of execution of the judgment and decree of 18th December 2018, by which her suit was dismissed and the defendant ordered to be registered as owner of LR No. Bukira/Buhirimonono/2022 on account of lawful purchase, pending an intended appeal to the Court of Appeal. She argued the appeal was arguable, that she would suffer substantial loss rendering the appeal nugatory, and offered security. The respondent opposed, contending the threshold was not met, that a notice of appeal is not an automatic stay, and that the judgment did not direct disposal of the suit land. Counsel canvassed the application orally. The court framed the sole issue as whether the application met the Order 42 Rule 6 threshold and restated the three conditions: substantial loss, no unreasonable delay, and security. It found judgment was delivered in December 2018 and the application filed on 4th February 2019 was not made with unreasonable delay, accepted the applicant's offer of security, and relied on the Malindi Law Society and Moi High School Kabarak authorities, as well as its power under Section 13(7)(a) of the Environment and Land Court Act to issue interim preservation orders. Allowing the application, the court ordered stay of execution pending appeal and directed the applicant to deposit Kshs. 200,000/= as security within 30 days, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the applicant satisfied the three conditions for stay of execution under Order 42 Rule 6

Holding

The application satisfied all three conditions - substantial loss, no unreasonable delay, and willingness to offer security - and was therefore merited.

Reasoning

The court restated the three conditions: substantial loss, application made without unreasonable delay, and security for due performance. The applicant asserted she would suffer substantial loss and render the appeal nugatory; judgment was delivered in December 2018 and the application filed on 4th February 2019, which the court held was not unreasonable delay; and the applicant offered security, leading the court to allow the application with a Kshs. 200,000/= deposit.

p. 2

Legal principles established

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  • Grant of stay of existing orders cannot be a matter of course; it rests upon genuine conditions, grounds, merit and dispatch.
  • The court has authority to issue orders for interim preservation of the subject matter of an appeal.

Court orders

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  1. 1.Orders (3) and (4) sought in the application dated 4th February 2019 allowed - stay of execution of the judgment and decree dated 18th December 2018 pending the intended appeal to the Court of Appeal
  2. 2.The applicant to deposit Kshs. 200,000/= as security with the court within 30 days

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Rules, 2010Order 9 Rule 9(b)
  • Civil Procedure Rules, 2010Order 21 Rule 4
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Land ActSection 150; Section 107 (2016)
  • Constitution of Kenya, 2010Articles 27(1), 48, 50(1), 159, 165
  • Environment and Land Court ActSection 13(7)(a)

Cases cited (2)

  • Malindi Law Society of Kenya -vs- Law Society of Kenya Nairobi Branch and 5 others
    Civil Application No. 20 of 2017 (2017) eKLR
  • Board of Governors Moi High School Kabarak and another -vs- Malcolm Bell
    Supreme Court of Kenya Application Nos. 12 and 13 of 2012 (2012) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; sections 1A, 1B, 3A and 63(e) Civil Procedure Act; Section 150 of the Land Act; Articles 27(1), 48, 50(1), 159 and 165 of the Constitution, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Florence Mumbi Njine v Kefa Oketchi Muinde [2019] KEELC 1853 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1853/eng@2019-07-10

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