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ELCPartially AllowedNotice of Motion dated 27th November 2018 (ELC Meru)· [2019] KEELC 3008 (KLR)

Fatuma Mohamud Mohammed Mire v Japhet Nteere Mwendwa [2019] KEELC 3008 (KLR)

Environment and Land Court
3 June 2019
ECE.C. Cherono
1,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru granted a landowner a 12-month stay of execution, but made clear that simply living on land doesn't prove substantial loss.

What this practically means

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Executive summary

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This was a Notice of Motion dated 27th November 2018 brought under Order 42 Rules 6 and 51 of the Civil Procedure Rules and Articles 48 and 159 of the Constitution, seeking continuation of a status quo order of 14th February 2017 and stay of execution of the judgment and decree delivered on 31st October 2018, pending an intended appeal to the Court of Appeal. The applicant contended that he had exercised his right of appeal, filed the application timeously, that the appeal was arguable, and that he stood to suffer substantial loss as he had occupied and developed the suit property, running a business there since 1988. The respondent submitted that a 30-day stay had already been granted, that arguability of the appeal was irrelevant to a stay application, and sought dismissal so she could enjoy the fruits of her judgment. E.C. Cherono, ELC Judge, applied Order 42 Rule 6(2) and the principles in Butt v Rent Restriction Tribunal and Wellington Lusweti Barasa, holding that mere occupation or residence on land is insufficient to establish substantial loss. Finding the application filed within the stipulated period and noting a consent of 5th December 2018 whereby both parties acknowledged occupying the premises, the court weighed the applicant's right of appeal against the respondent's enjoyment of her judgment. The application was found partially successful: a 12-month stay of execution was granted, a status quo order was issued restraining any construction, improvement or demolition over the suit property, and the applicant was ordered to bear the costs of the application.

Key legal issues

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01

Reasonable delay in filing the stay application

Holding

The application filed on 27th November 2018, within the 30-day stay period granted with the judgment of 31st October 2018, was brought without unreasonable delay

Reasoning

The judgment and decree subject to the intended appeal were delivered on 31st October 2018, with a 30-day stay of execution. The application was filed on 27th November 2018, within that stipulated period, satisfying the timeliness requirement of Order 42 Rule 6(2)(a).

p. 2
02

Substantial loss

Holding

The applicant's occupation and operation of a business on the suit premises since 1988, with both parties occupying the property under a consent of 5th December 2018, justified a limited stay to preserve the status quo

Reasoning

The applicant deponed that he has occupied and developed the suit property, running a business there since 1988, and would suffer substantial loss if evicted. A consent between advocates confirmed both parties occupy the premises. The court weighed this against the respondent's right to the fruits of her judgment and granted only a 12-month stay.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must satisfy three conditions: filing without unreasonable delay, demonstration of substantial loss, and provision of security as ordered
  • Merely residing or occupying the suit land is not sufficient to demonstrate substantial loss for purposes of a stay pending appeal

Court orders

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  1. 1.The Appellant/Applicant is granted a stay of execution for only 12 months from today
  2. 2.An order of status quo be and is hereby issued requiring both the Appellant and the Respondent to maintain their respective positions and/or occupation of the suit property and that NO construction of any kind whether by way of improvement or demolition should be undertaken over the suit property
  3. 3.The Applicant shall bear the costs of this application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder XLI Rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)

Cases cited (4)

  • Wellington Lusweti Barasa & 47 others Vs Lands Limited & Another
    (2015) eKLR
  • Charles Wahome Sethi Vs Angela Wairimu Gethi
    Court of Appeal Civil Appeal No. 302 of 2007
  • Butt Vs Rent Restriction Tribunal
    (1982) K.L.R 417
  • Siegfried Busch Vs M.C.S.K
    (2013) eKLR
Jurisdiction invoked
Order 42 Rule 6 & 51 C.P.R and Articles 48 and 159 of the Constitution of Kenya, 2010 as well as Sections 1A, 1B, 3A & 63(e) C.P.A

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, "Fatuma Mohamud Mohammed Mire v Japhet Nteere Mwendwa [2019] KEELC 3008 (KLR)", Case Analysis (2019). Notice of Motion dated 27th November 2018 (ELC Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3008/eng@2019-06-03

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