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ELCDismissedNot stated in the judgment· [2019] KEELC 3662 (KLR)

Rosalia Masabakwa Abwoba & 3 others v Francis Walumbe s/o Joseph Mapesa & another [2019] KEELC 3662 (KLR)

Environment and Land Court
9 April 2019
1,448 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 Kakamega dismissed a family's bid to set aside a 2018 land judgment because they proved no substantial loss, no delay excuse, and no arguable appeal.

What this practically means

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Executive summary

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The applicants, who described themselves as unaware that their late father had sold a portion of LR Butsotso/Shikoti/225, applied by notice of motion dated 20th November 2018 under Order XXXVI Rule 1(a) & 2(b) and Order XLIV Rule 1(a) & (b) of the Civil Procedure Rules 2010. They sought three orders: that the judgment delivered on 28th June 2018 be set aside; that the County Lands Registrar – Kakamega be enjoined as a respondent; and that Sarah anyone Abwiba be enjoined as an applicant. They argued that their advocate failed to file and highlight submissions, that the mutation form for the suit land was incomplete, that spousal and family consent was never obtained, and that the 1st respondent had never lived on or indicated any claim to the land, which contained the family homestead and the grave of the deceased owner. The respondents opposed the application as misconceived, an abuse of process, filed by a stranger, out of time, and unsupported by evidence or triable issues. The court analysed the application as one effectively seeking to appeal against the judgment and therefore assessed it against the settled conditions for stay of execution under Order 42 rule 6: substantial loss, application without unreasonable delay, and security. It also applied the arguability and nugatory-ness test from Reliance Bank Ltd v Norlake Investments Ltd and other authorities. Finding that the applicants fulfilled none of the conditions, that no memorandum of appeal had been availed, and that no just cause existed to deprive the plaintiff of the fruits of judgment, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Conditions for stay of execution under Order 42 rule 6

Holding

The applicants failed to fulfil any of the required conditions: substantial loss, absence of unreasonable delay, and security

Reasoning

The court restated Order 42 rule 6(1) and Order 42 rule 6 of the Civil Procedure Rules, requiring proof of substantial loss, application without unreasonable delay, and security for due performance of the decree. It then found, on the grounds of the application, that none of these conditions had been fulfilled, and that no memorandum of appeal had been availed to show any chance of success on an intended appeal.

p. 2
02

Arguability of the intended appeal

Holding

The applicants did not show that the intended appeal was arguable or that refusal of stay would render it nugatory

Reasoning

Applying Reliance Bank Ltd vs Norlake Investments Ltd and Chris Munga N. Bichange vs Richard Nyagaka Tongi, the court held that an applicant must show an arguable appeal and that the appeal would not be rendered nugatory if stay is refused. The applicants produced no memorandum of appeal and showed neither limb, so the application could not succeed.

p. 2
03

Balance between right of appeal and right to enjoy fruits of judgment

Holding

There must be just cause to deprive a successful plaintiff of the fruits of judgment; none was shown

Reasoning

Citing Mohamed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat, the court noted that the right of appeal must be balanced against the plaintiff's right to enjoy the fruits of the judgment, and only a just cause justifies deprivation. The applicants demonstrated no such just cause, and strong grounds of appeal alone would not justify stay per Carter & Sons Ltd.

p. 2

Legal principles established

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  • For a stay of execution or setting aside of judgment, the applicant must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security
  • An intended appeal must be arguable and, if successful, must not be rendered nugatory; both limbs must be demonstrated

Court orders

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  1. 1.The application dated 20th November 2018 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order XXXVI, Rule 1(a) & 2(b)
  • Civil Procedure Rules 2010Order XLIV, Rule 1(a) & (b)
  • Civil Procedure Rules 2010Order 42 rule 6(1) and Order 42 rule 6

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery Vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
Jurisdiction invoked
Order XXXVI, Rule 1(a) & 2(b) and Order XLIV, Rule 1(a) & (b) 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, "Rosalia Masabakwa Abwoba & 3 others v Francis Walumbe s/o Joseph Mapesa & another [2019] KEELC 3662 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3662/eng@2019-04-09

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