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ELCPartially AllowedMiscellaneous Application arising from H.C.C. No. 54 of 2004 (ELC)· [2019] KEELC 3866 (KLR)

Joseph M’itonga v M’nkumbuku M’kirigia [2019] KEELC 3866 (KLR)

Environment and Land Court
8 April 2019
2,416 words in judgment
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The bottom line

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A Kenyan landowner won a temporary halt to execution of a judgment transferring his land, but only after posting Kshs. 60,000 security and filing his appeal within 45 days.

What this practically means

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Executive summary

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By Notice of Motion dated 28 August 2018, the Defendant/Applicant, the registered owner of land measuring approximately 11.98 acres, sought stay of execution of the decree in H.C.C. No. 54 of 2004 (Environment and Land Court) pending an intended appeal to the Court of Appeal against a judgment delivered on 28 June 2018 dismissing his counterclaim to a claim for a half share of the suit land. The Applicant argued that he and his nine sons had built homes on over 4 acres and that execution would render the appeal nugatory, while the Respondent, his brother, asserted the land was family land held in trust, that survey had divided it into 4.4 acres per party since 2001, and that the application was a delaying tactic. The Court, guided by Order 42 Rule 6 of the Civil Procedure Rules, applied the three conditions for stay: no unreasonable delay, substantial loss, and security. It found the application timeously filed, but held that the Applicant, already in occupation, had not demonstrated substantial loss, applying James Wangalwa, Machira, and Absalom Dora, while accepting that execution could render the appeal nugatory. Balancing the competing rights of decree holder and appellant, the Court fixed security at Kshs. 60,000/-. The application was allowed on conditional terms: stay granted provided the appeal is filed within 45 days, security of Kshs. 60,000/- deposited in a joint interest-earning account or by bank guarantee within 15 days, failing which the stay lapses and the application stands dismissed, with costs in the cause.

Key legal issues

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01

Whether there was unreasonable delay in bringing the application

Holding

No delay; the application filed on 28/8/2018 following judgment delivered 28/6/2018 was timeously brought

Reasoning

The judgment complained of was delivered on 28/6/2018 and the application was filed on 28/8/2018, within 60 days. In the circumstances of the case the Court found no delay and held the application was filed timeously, satisfying the first condition.

p. 2
02

Whether substantial loss was demonstrated

Holding

Applicant failed to demonstrate substantial loss; he was in occupation and no specific pecuniary or tangible loss was proved

Reasoning

Relying on authorities holding that mere execution or its likelihood is not substantial loss, and that specific details must be proved, the Court found that the Applicant, already in occupation, had not demonstrated that execution would cause substantial loss beyond rendering the appeal nugatory.

p. 3
03

Whether security should be ordered and in what amount

Holding

Court fixed security at Kshs. 60,000/- for due performance of the decree, given the decree was for transfer of land

Reasoning

Under Order 42 Rule 6(2)(b) it is for the Court to order the nature of security; it is not necessarily the value of the subject matter but secures due performance such as costs. Exercising discretion, the Court found Kshs. 60,000/- sufficient for a decree for transfer of land.

p. 3

Legal principles established

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  • Stay of execution is an equitable, discretionary relief which must be exercised judiciously and upon the confines of the law
  • The conditions for stay are absence of delay, substantial loss, and security for due performance of the decree
  • The existence of an appeal is not an automatic right to stay
  • Courts balance the successful litigant's right to the fruits of judgment against the unsuccessful litigant's right of appeal, usually via suitable security

Court orders

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  1. 1.Stay of execution granted provided the appeal is filed within 45 days from the date of the ruling
  2. 2.Applicant to provide security for due performance of the decree in the sum of Kshs. 60,000/- within 15 days, deposited in an interest-earning account in the joint names of both advocates or by a bank guarantee of a similar amount
  3. 3.If the Applicant fails to comply, the stay lapses and the application stands dismissed
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)(b)

Cases cited (9)

  • James Wangalwa & Anor. Vs Agnes Naliaka Cheseto
    2012 (eKLR)
  • Silverstein vs. Chesoni
    [2002] KLR 867
  • Machira T.A Machira & Co. Advocates vs. East African Standard (No.2)
    (2002) KLR 63
  • Absalom Dora vs. Turbo Transporters
    2013 eKLR
  • John Gacunja Njoroge –Vs – Joseph Njoroge
    Nyeri ELC No. 5/15
  • Teresiah Wairimu –Vs- Wanjiku Mwangi
    Thika ELC 9/17
  • Kiplagat Kotut v Rose Jebor Kipngok
    [2015] eKLR
  • Kenya Tanzania Uganda Leasing Co. Ltd v Mukenya Ndunda
    [2013] eKLR
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction of the High Court over its own decree pending intended appeal to the Court of Appeal)

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, "Joseph M’itonga v M’nkumbuku M’kirigia [2019] KEELC 3866 (KLR)", Case Analysis (2019). Miscellaneous Application arising from H.C.C. No. 54 of 2004 (ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3866/eng@2019-04-08

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