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ELCPartially AllowedMeru CMCC No. 717 of 1995 (appeal)· [2019] KEELC 2379 (KLR)

M’Mbui M’Rimbere & 5 others v David Gitonga [2019] KEELC 2379 (KLR)

Environment and Land Court
17 July 2019
LMLucy N. Mbugua
573 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court granted landowners a stay of execution blocking eviction, but only for eight months.

What this practically means

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Executive summary

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The applicants sought a stay of execution of the judgment delivered on 11 December 2018 in Meru CMCC No. 717 of 1995, pending appeal, arguing they faced eviction and irreparable harm if the decree were executed. The respondent opposed via a replying affidavit filed 5 March 2019, contending the applicants should not enjoy proceeds of illegally acquired property while denying him the fruits of his judgment. The court applied Order 42 rule 6(2) of the Civil Procedure Rules, which requires substantial loss, no unreasonable delay, and security. Although the full lower court judgment was not available, the decree showed the land titles held by the appellants were to revert to the respondent, so the fear of eviction was real. The court distinguished the Lucio Matingwany authority, where the eviction threat had been found imaginary, and noted Masisi Mwita dealt with the respondent's capacity to repay. The respondent conceded there was no delay in filing the application. However, because the underlying suit had been filed in 1995 and concluded only in December 2018, the court was mindful of the respondent's decades-long wait. The court allowed the stay of execution but limited it to eight months only, with the costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Substantial loss

Holding

The applicants established substantial loss since the decree would revert land titles to the respondent, making eviction a real threat

Reasoning

The full lower court judgment was not availed, so the court relied on the decree. The decree showed titles held by the appellants were to revert to the respondent, so the fear of eviction was real, not imaginary. The court distinguished the Lucio Matingwany case where the threat of eviction was held imaginary and unfounded, and noted Masisi Mwita concerned capacity to repay.

p. 1
02

Unreasonable delay

Holding

Delay was not an obstacle; the respondent conceded the application was filed promptly, though the aged suit justified a time-limited stay

Reasoning

The respondent admitted the application was filed without delay. However, the underlying suit was filed in 1995 and concluded only in December 2018, so the respondent's fear of further delay was legitimate; the court balanced this by granting a stay of only eight months.

p. 2

Legal principles established

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  • Stay of execution under Order 42 rule 6(2) requires substantial loss, absence of unreasonable delay, and security

Court orders

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  1. 1.Stay of execution of the judgment delivered on 11.12.2018 in Meru CMCC No. 717 of 1995 granted for a period of 8 months only
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Meru Chief Magistrate's Court
CMCC No. 717 of 1995
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, "M’Mbui M’Rimbere & 5 others v David Gitonga [2019] KEELC 2379 (KLR)", Case Analysis (2019). Meru CMCC No. 717 of 1995 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2379/eng@2019-07-17

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