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ELCAllowedNot stated in the judgment· [2019] KEELC 3289 (KLR)

Ernest M. Mugambi v Jacob Henry Kirimi & another [2019] KEELC 3289 (KLR)

Environment and Land Court
15 May 2019
LMLucy N. Mbugua
949 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court paused a land ownership judgment for one year, but only because the losing party agreed to deposit KSh 100,000 as security.

What this practically means

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Executive summary

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This was a Notice of Motion filed on 13 December 2018 by the defendant/applicant (the 2nd defendant) seeking a stay of execution of a judgment and decree of 31st October 2018 pending an intended appeal, brought under Order 42 (b)(1) & 2 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act. The underlying judgment had ordered the plaintiff to be registered as proprietor of land title number Ntima/Igoki/2504 by way of adverse possession. The plaintiff opposed the application via a preliminary objection/grounds of opposition filed on 20 December 2018, contending that the application was fatally defective for being brought under the wrong provisions, that the decree sought to be stayed was not annexed, and that the Order 42 Rule 6 conditions had not been satisfied. In submissions, the applicant relied on Sections 3A and 63(e) of the Civil Procedure Act and the stay conditions of substantial loss, sufficient cause and absence of unreasonable delay; the respondent argued the application was a ploy to deny him the fruits of his judgment. Justice Lucy N. Mbugua found that the applicant had demonstrated sufficient cause to a limited extent, as he stood to lose proprietorship of the land, but noted that the respondent was the one in occupation. The court allowed the stay for one year, conditioned on the applicant depositing Sh. 100,000 as security within 30 days, failing which the stay would lapse; the plaintiff was to remain on the suit land, and the applicant was to meet the costs of the application.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6 were met

Holding

The applicant demonstrated sufficient cause to a limited extent because he stands to lose proprietorship of the land, and stay was granted on terms including security and a one-year limit.

Reasoning

The court restated the Order 42 Rule 6 conditions: substantial loss, application without unreasonable delay, and security for due performance of the decree. It found the applicant had shown sufficient cause since he stood to lose proprietorship of the suit land if the decree registering the plaintiff as proprietor by adverse possession took effect. However, because the respondent-plaintiff was the one in occupation of the land, the stay was tailored: limited to one year, conditioned on a Sh. 100,000 security deposit within 30 days, and preserving the plaintiff's occupation pending the intended appeal.

p. 2

Legal principles established

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  • Stay of execution under Order 42 Rule 6 requires sufficient cause, substantial loss, absence of unreasonable delay and provision of security.

Court orders

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  1. 1.The application for stay of the judgment is allowed for a period of one year
  2. 2.The applicant is to deposit a sum of Sh. 100,000 as security in court within 30 days from the date of the ruling, failing which the order of stay of judgment shall automatically lapse
  3. 3.The Plaintiff/Respondent is to remain on the suit land
  4. 4.The applicant is to meet the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 42(6)(2)
  • Civil Procedure Rules, 2010Order 42 (b)(1) & 2
  • Civil Procedure Rules, 2010Order 51 Rule 1
Jurisdiction invoked
Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 3A and 63(e) of the Civil Procedure Act

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, "Ernest M. Mugambi v Jacob Henry Kirimi & another [2019] KEELC 3289 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3289/eng@2019-05-15

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