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ELCDismissedKajiado CM ELC No. 140 of 2018 (appeal therefrom)· [2019] KEELC 2337 (KLR)

Alice Wacheke Muiruri v Peter Irungu Karanu [2019] KEELC 2337 (KLR)

Environment and Land Court
17 July 2019
COChristine Ochieng
1,248 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the appellant's Notice of Motion dated 28th January 2019, brought under Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of execution of the orders of Hon. S.M. Shitubi (CM) in Kajiado CM ELC No. 140 of 2018 delivered on 24th January 2019, which dismissed her injunction application and lifted her caution over LR Kajiado/Kaputiei North/2333 pending her appeal. The appellant, a purchaser who claimed to have paid part of the purchase price, feared the respondent would subdivide and dispose of the land, rendering the appeal nugatory. The respondent opposed, contending non-compliance with Order 42 Rule 2, that the sale agreement had been rescinded after the appellant failed to complete payment, that no prima facie case was established below, and that her loss was limited to a refundable deposit. The court framed a single issue: whether a stay of execution should issue. Applying Order 42 Rule 6(2) and the principles in Butt v Rent Restriction Tribunal and Samwel Kiprono Sang, the court held that execution is a lawful process whose commencement does not amount to substantial loss; since the lower court suit was undetermined, the appellant could still pursue a refund of the purchase price. Finding no good grounds for a stay, the court dismissed the application, directed that the appeal be heard within 60 days, and ordered costs in the cause.

Key legal issues

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01

Whether the appellant satisfied the conditions in Order 42 Rule 6(2) for a stay of execution pending appeal

Holding

The application failed: no substantial loss was demonstrated since the lower court suit remained undetermined and the appellant could claim a refund of the purchase price, and no grounds for a stay existed.

Reasoning

The court applied Order 42 Rule 6(2), which requires substantial loss, absence of unreasonable delay, and security. Relying on Samwel Kiprono Sang and Butt v Rent Restriction Tribunal, it held that execution is a lawful process and its mere commencement does not constitute substantial loss. Since the lower court suit was yet to be heard on its merits, the appellant's entitlement to a refund could still be pursued, so refusing the stay would not render the appeal nugatory.

p. 2

Legal principles established

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  • Mere motion or likelihood of execution does not amount to substantial loss under Order 42 rule 6 because execution is a lawful process
  • The power to grant or refuse a stay is discretionary and should be exercised so as not to render an appeal nugatory

Court orders

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  1. 1.The Notice of Motion dated 28th January, 2019 is disallowed (stay of execution refused)
  2. 2.The Appeal to be set down for hearing expeditiously within 60 days from the date of the ruling
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 42 Rule 2

Cases cited (3)

  • Samwel Kiprono Sang V Rosemary Chebet Koros, David Musyoka Nzuki & Housing Finance Corporation Of Kenya Ltd
    (2019) eKLR
  • Machira t/a Machira & Company Advocates V East African Standard
    (2002) 2 KLR 63
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Chief Magistrate's Court, Kajiado
Kajiado CM ELC No. 140 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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, "Alice Wacheke Muiruri v Peter Irungu Karanu [2019] KEELC 2337 (KLR)", Case Analysis (2019). Kajiado CM ELC No. 140 of 2018 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2337/eng@2019-07-17

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