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ELCAllowedNot stated in the judgment· [2019] KEELC 4080 (KLR)

Marion Kaari Mbui v Elisha Mbogo Nthiga [2019] KEELC 4080 (KLR)

Environment and Land Court
21 March 2019
1,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court paused execution of a judgment for two years because enforcing it might have made the owner's planned appeal pointless.

What this practically means

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Executive summary

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By a notice of motion dated 7th November 2018 under sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 42 Rules 6 and Order 51 of the Civil Procedure Rules, the Defendant sought a stay of execution of the court's judgment and decree pending an intended appeal to the Court of Appeal, having filed a notice of appeal. He asserted the appeal had high chances of success, would be rendered nugatory if the Plaintiff were registered as proprietor and possibly alienated the suit properties, and offered security by deposit of title deeds. The Plaintiff opposed, contending the application was frivolous, that mere execution does not amount to substantial loss, and that no memorandum of appeal demonstrating an arguable appeal had been attached. The court directed written submissions, which were duly filed. Framing the sole question as whether the Defendant satisfied the Order 42 Rule 6(2) conditions, the court held that demonstrating an arguable appeal is not a requirement under Order 42 Rule 6, distinguishing Re Global Tours & Travels Ltd, which concerned stay of proceedings. Delay was undisputed and security was offered. Although execution per se is not substantial loss, the unchallenged risk that the Plaintiff might deal with the suit properties in a way that would render a successful appeal nugatory constituted substantial loss. The application was allowed: stay was granted for two years or until conclusion of the appeal, conditional on deposit of the original title deeds for the three suit parcels within 14 days; the Deputy Registrar was to supply proceedings and a certified decree within 45 days; and costs of the application were awarded to the Plaintiff.

Key legal issues

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01

Whether stay of execution pending appeal requires demonstration of an arguable appeal

Holding

No; an arguable appeal is required only in the Court of Appeal, not on an application under Order 42 Rule 6.

Reasoning

The Plaintiff argued the Defendant had to attach a memorandum of appeal and show an arguable appeal, relying on Re Global Tours & Travels Ltd. The court rejected this: that case concerned stay of further proceedings, not stay of execution of a decree, and the arguable-appeal threshold applies only under Rule 5(2)(b) of the Court of Appeal Rules. The court therefore confined itself to the three conditions in Order 42 Rule 6(2).

p. 1
02

Whether the Defendant demonstrated substantial loss, delay being undisputed and security offered

Holding

Yes; the unchallenged risk that registration of the Plaintiff might allow alienation of the suit properties, rendering the appeal nugatory, constituted substantial loss.

Reasoning

Delay was not contested and the Defendant offered to deposit title deeds as security. While mere execution is not substantial loss, the Plaintiff never denied the apprehension that she might alienate the suit properties before the appeal was concluded. The court held that such a risk of the appeal being rendered nugatory satisfies the substantial-loss requirement, and granted a time-limited stay conditioned on deposit of the title deeds.

p. 2

Legal principles established

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  • The requirement of demonstrating an arguable appeal is mandatory in the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules but not under Order 42 Rule 6 of the Civil Procedure Rules.
  • Execution per se does not amount to substantial loss; but the risk of an intended appeal being rendered nugatory, if successful, may constitute substantial loss under Order 42 Rule 6(2).

Court orders

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  1. 1.Stay of execution of the judgment and decree dated 28th October 2018 for 2 years or until conclusion of the intended appeal to the Court of Appeal, whichever comes earlier
  2. 2.Defendant to deposit original Title Deeds for Title Nos. Ngandori/Kiriari/4236, 4237 and 4238 within 14 days as a condition for stay, in default of which the stay shall lapse
  3. 3.Deputy Registrar to supply the Defendant with copies of proceedings and a certified copy of the decree for purposes of appeal within 45 days
  4. 4.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6; Order 51
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Re Global Tours & Travels Ltd, Winding up Cause No. 43 of 2000
  • James Wangalwa & Another Vs Agnes Naliaka Chesolo
    ELC Misc Application No. 42 of 2012
  • Butt Vs Rent Restriction Tribunal
    [1979] eKLR
  • Wilson Vs Church (No 2)
    12 Ch. D 454
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21) and Order 42 Rules 6 and Order 51 of the Civil Procedure Rules

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, "Marion Kaari Mbui v Elisha Mbogo Nthiga [2019] KEELC 4080 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4080/eng@2019-03-21

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