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ELCDismissedNyeri ELCA (Civil Appeal) arising from Nyeri CMCC No. 430 of 2006· [2019] KEELC 3581 (KLR)

Esther Wamahiga Ndungu & another v Stephene Kuria Kienje & 6 others [2019] KEELC 3581 (KLR)

Environment and Land Court
29 April 2019
1,193 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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By a notice of motion dated 4th February 2019, George Kamau Ndungu and Muthee Murage, appellants in an appeal against the judgment of Honourable W. Kagendo, Chief Magistrate delivered on 19th December 2018 in Nyeri CMCC No. 430 of 2006, sought stay of execution of that judgment and an order restraining the 1st and 4th respondents from cutting down trees on parcels Nyeri/Endarasha/415, 416 and 507 pending the hearing and determination of the application and the appeal. They contended that the respondents had begun felling trees and resurveying the land in purported execution, and annexed photographs of felled trees. The 4th respondent, replying on his own behalf and for the 1st to 3rd respondents, denied cutting trees on parcels 415 and 416, averring that he cut only trees he had planted on parcel 507 with authority from the area chief and Kenya Forest Service, and contended that the applicants had neither shown substantial loss nor satisfied the conditions for stay. L N Waithaka J applied the three prerequisites under Order 42 Rule 6 of the Civil Procedure Rules. The application was held to have been filed without unreasonable delay, two months after judgment not being unreasonable. On substantial loss, the court found the photographs did not identify the parcels from which trees were cut, the 4th respondent's authority to cut trees in parcel 507 was uncontroverted, and the applicants failed to demonstrate how that cutting would cause them substantial loss. The security limb was not satisfied in terms. The application was dismissed with costs to the 1st to 4th plaintiffs/respondents.

Key legal issues

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01

Whether the two-month delay in filing the application amounted to unreasonable delay

Holding

No; two months is not unreasonable delay

Reasoning

The court accepted that although the application was not filed immediately after the judgment of 19th December 2018, it was filed within two months, and held that such a delay cannot be characterised as unreasonable under the first prerequisite of Order 42 Rule 6.

p. 2
02

Whether the applicants demonstrated substantial loss to justify stay of execution

Holding

No; the applicants failed to prove substantial loss

Reasoning

The applicants relied on photographs of felled trees, but these did not show from which parcel the trees had been cut. The 4th respondent admitted cutting only trees he planted in parcel 507 with authority from the area chief and Kenya Forest Service, and those averments were uncontroverted. The applicants did not demonstrate how cutting trees in parcel 507 would cause them substantial loss.

p. 2
03

Whether the applicants offered security for the due performance of the decree

Holding

The applicants expressed willingness to abide by conditions but did not specifically offer security; the point was moot given failure on substantial loss

Reasoning

The court noted that the applicants expressed willingness to abide by any conditions the court would impose but did not specifically state they were willing to furnish security for due performance of the decree as may ultimately issue against them.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • The fact that the subject matter of the appeal is land is not, of itself, proof that the applicant will suffer substantial loss
  • The applicant bears the evidential burden of proving substantial loss

Court orders

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  1. 1.The notice of motion dated 4th February 2019 is dismissed with costs to the 1st – 4th plaintiffs/respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) l KAR 1018
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    Bungoma HC Misc Application No 42 of 2011
On appeal from
Chief Magistrate's Court, Nyeri
Nyeri CMCC No. 430 of 2006
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Wamahiga Ndungu & another v Stephene Kuria Kienje & 6 others [2019] KEELC 3581 (KLR)", Case Analysis (2019). Nyeri ELCA (Civil Appeal) arising from Nyeri CMCC No. 430 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3581/eng@2019-04-29

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