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ELCAllowedNot stated in the excerpt· [2020] KEELC 643 (KLR)

Ezekiel Kagoya Wakagwi v Samuel Ngahu Mundui (Sued as legal representative of the estate of Wanjohi Ngahu) [2020] KEELC 643 (KLR)

High Court of Kenya
15 October 2020
YAY.M. Angima
549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Embu allowed a property owner to transfer land without the losing party's cooperation because no stay of execution was in place.

What this practically means

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Executive summary

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By a notice of motion dated 6th November 2019 brought under Sections 98 and 3A of the Civil Procedure Act, the Plaintiff sought an order authorising the Deputy Registrar/Executive Officer of the court to execute all necessary documents on behalf of the Defendant to facilitate transfer of Title No. Nthawa/Gitiburi/1904 to the Plaintiff, in execution of a decree dated 30th May 2019 (arising from a successful adverse possession claim). The Defendant opposed the application through a replying affidavit sworn on 27th January 2020, contending that he had filed an appeal against the decree before the Court of Appeal at Nyeri, exhibiting a notice of appeal dated 27th January 2020, and asserting that the Plaintiff had not proved the adverse possession claim and that his appeal had high chances of success. Both parties filed written submissions and elected to rely entirely on them. The court, considering the application, the replying affidavit, submissions and the record, observed that the Defendant's own application for stay of execution had been dismissed on 30th July 2020 and that no stay had been obtained from the Court of Appeal. It held that a pending application for extension of time to file a notice of appeal was not sufficient reason to decline the application, and that a judgment creditor is entitled to enjoy the fruits of judgment absent a stay from either court. The application was allowed with costs to the Plaintiff, the ruling being dated and signed at Embu on 15th October 2020 and delivered via Microsoft Teams.

Key legal issues

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01

Whether execution of the decree through execution of documents by the Deputy Registrar should be ordered despite a pending appeal

Holding

The application was merited because the Defendant had no stay of execution in place; the decree of 30th May 2019 remained executable.

Reasoning

The court noted that the Defendant's own application for stay of execution had been dismissed on 30th July 2020 and that no stay had been obtained from the Court of Appeal. The mere pendency of an application for extension of time to file a notice of appeal was insufficient to block execution. Absent a stay, the Plaintiff was entitled to enjoy the fruits of his judgment.

p. 2

Legal principles established

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  • A judgment creditor is entitled to enjoy the fruits of judgment in the absence of an order for stay of execution from the trial court or the appellate court.
  • A pending application for extension of time to file a notice of appeal is not sufficient reason to decline execution of a decree.

Court orders

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  1. 1.The Plaintiff's notice of motion dated 6th November 2019 is allowed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 98
  • Civil Procedure Act (Cap. 21)Section 3A
Jurisdiction invoked
Sections 98 and 3A of the Civil Procedure Act (Cap. 21)

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, "Ezekiel Kagoya Wakagwi v Samuel Ngahu Mundui (Sued as legal representative of the estate of Wanjohi Ngahu) [2020] KEELC 643 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/643/eng@2020-10-15

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