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ELCAllowedNot stated (ruling on application dated 25th October, 2019)· [2020] KEELC 603 (KLR)

Maingi Uvyu Mwalale v James Mutuku Kyumbua [2020] KEELC 603 (KLR)

Environment and Land Court
23 November 2020
MGMBOGO C. G.
1,584 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Filing a notice of appeal without an actual appeal or stay order will not stop a Kenyan court from evicting you.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the plaintiff's application dated 25th October, 2019, following the court's judgment of 1st October, 2019 in which the plaintiff was declared lawful owner of parcel KITETA/KAKUSWI/478, the defendant's continued presence was held to constitute trespass, an eviction order was issued, and damages of Kshs. 100,000/- were awarded. The plaintiff sought leave for an auctioneer or court bailiff to enforce the eviction order instead of the O.C.P.D Makueni, and for the Makueni County Police Commander to provide security during the eviction. The defendant opposed, arguing he had appealed and that eviction would render the appeal nugatory and evict his family from ancestral land. The plaintiff's counsel relied on Njeru Mugera v. Eminah Nkirote Njagi and Charles Kaburu v. Munyua Ndatho, submitting the notice of appeal was filed out of time under Rule 75(2) of the Court of Appeal Rules, 2010, and that no appeal or stay had been filed. The defendant relied on Stephen Mwangi Kariuki & Another v. Mwangi Tirus, which approved Rhoda Mukoma v. John Abuoga on preserving the status quo. The court held that although an appeal should not be rendered nugatory, the defendant had only filed an out-of-time notice of appeal and had not filed the appeal itself or obtained a stay; the merits of any intended appeal were not for this court. The application was allowed in full, with leave granted for enforcement by auctioneer or court bailiff, the police commander directed to provide security, and costs of the application provided for.

Key legal issues

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01

Whether execution of the eviction order should be stayed or withheld because the defendant has filed a notice of appeal

Holding

The court declined to withhold execution because the defendant had not filed the appeal itself and had no stay order.

Reasoning

The court acknowledged the principle that an appeal should not be rendered nugatory while a party exercises the undoubted right of appeal. However, the defendant had only filed a notice of appeal, allegedly out of time, and had not filed the substantive appeal nor sought a stay from this Court or the Court of Appeal. The merits of the intended appeal were not a matter for this Court to determine.

p. 2
02

Whether the judgment creditor should be permitted to execute through an auctioneer or court bailiff with police security

Holding

Leave was granted for enforcement by an auctioneer or court bailiff, with the Makueni County Police Commander directed to provide security.

Reasoning

Relying on Njeru Mugera v. Eminah Nkirote Njagi [2016] eKLR and Charles Kaburu v. Munyua Ndatho [2020] eKLR, the court found that applications seeking to implement or enforce a judgment of the court ought to be allowed to ensure compliance, especially where no stay has been granted.

p. 1

Legal principles established

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  • Where no stay of execution has been granted by either the trial court or the superior court, a judgment creditor may be assisted to enforce a judgment even where a notice of appeal has been filed.

Court orders

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  1. 1.Leave issued for an Auctioneer or Court Bailiff to enforce the eviction order issued vide the judgment delivered on 1/10/2019 instead of the Officer in Charge of Police Department (O.C.P.D) Makueni
  2. 2.Leave issued for an order directing the Makueni County Police Commander to provide adequate security during the eviction exercise
  3. 3.Costs of the application provided for

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Appellate Jurisdiction ActNot specified
  • Court of Appeal Rules, 2010Rule 75(1) and 75(2)

Cases cited (4)

  • Njeru Mugera vs. Eminah Nkirote Njagi
    [2016] eKLR
  • Charles Kaburu vs. Munyua Ndatho
    [2020] eKLR
  • Stephen Mwangi Kariuki & Another vs. Mwangi Tirus
    [2017] eKLR
  • Rhoda Mukoma vs. John Abuoga
    Civil Application No.95 of 1987 [1988] KLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act (Cap 21) and all other enabling provisions of the law

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, "Maingi Uvyu Mwalale v James Mutuku Kyumbua [2020] KEELC 603 (KLR)", Case Analysis (2020). Not stated (ruling on application dated 25th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/603/eng@2020-11-23

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