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ELCDismissedMalindi ELC Case (Plot No. 5044 Malindi suit)· [2019] KEELC 2868 (KLR)

Fred Kazungu Justin Dindi v Julius Lewa Jefwa & 4 others [2019] KEELC 2868 (KLR)

Environment and Land Court
16 July 2018
NENot stated in extract
677 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Malindi Environment and Land Court refused to stop eviction of occupants from Plot 5044 Malindi because they filed no appeal and showed no real loss.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi on a Notice of Motion dated 27th April 2018 in which the five Defendants sought a stay of execution of the judgment delivered on 15th March 2018 and the consequential decree, pending an intended appeal. The underlying suit, filed on 30th June 2014 by the Plaintiff, Fred Kazungu Justin Dindi, sought vacant possession and a permanent injunction in respect of Plot No. 5044 Malindi, and had succeeded on a balance of probabilities, with the Defendants ordered to give vacant possession within 30 days failing which eviction was to follow. The stay application, supported by an affidavit of the 5th Defendant, Baraka Kaingu, was premised on the grounds that the Plaintiff intended to execute the decree and that the Defendants would suffer substantial loss and be rendered homeless. The Plaintiff opposed, observing that the Defendants had not even filed an appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, the court found that the applicants had put nothing before it to show the intended appeal was arguable; that, from their own trial admissions, they had lived on another piece of land before invading the suit premises in 2013, while the Plaintiff had lived on the land for some 26 years; and that substantial loss was therefore not demonstrated. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Defendants satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application failed because substantial loss was not demonstrated, no appeal had been filed, and the conditions were not met.

Reasoning

The court applied the three conditions in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. On the material before it, the applicants had not filed any Notice of Appeal, so they could not show the appeal was arguable. The court also found from the applicants' own trial admissions that they had lived elsewhere before invading the suit premises in 2013, whereas the Plaintiff had lived on the land for some 26 years, undermining the claim that eviction would render them homeless.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, absence of unreasonable delay, and offer security, as required by Order 42 Rule 6(2) of the Civil Procedure Rules
  • An applicant who has not yet filed an appeal cannot demonstrate that the intended appeal is arguable

Court orders

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  1. 1.Application for stay of execution of the judgment and decree dated 15th March 2018 dismissed
  2. 2.Costs awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
Jurisdiction invoked
Order 42 Rule 6(2) 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, "Fred Kazungu Justin Dindi v Julius Lewa Jefwa & 4 others [2019] KEELC 2868 (KLR)", Case Analysis (2018). Malindi ELC Case (Plot No. 5044 Malindi suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2868/eng@2019-06-26

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