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ELCDismissedEnvironment and Land Court Bungoma Civil Appeal No 3 of 2020 (Notice of Motion dated 16th September 2020)· [2020] KEELC 951 (KLR)

Mossy Khaemba Muchanga & Davis Wabwile Muchanga v Paul Lutoti Khawanga [2020] KEELC 951 (KLR)

Environment and Land Court
22 October 2020
BOBoaz N. Olao
2,183 words in judgment
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The bottom line

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A Kenyan court refused to pause execution of a land judgment because the applicants showed no concrete loss, delayed seven months, and met only one of three required conditions.

What this practically means

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Executive summary

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The applicants, Mossy Khaemba Muchanga and Davis Wabwile Muchanga, moved the Environment and Land Court at Bungoma by Notice of Motion dated 16th September 2020 under Order 42 Rule 6(1) and Order 51 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking stay of execution of the judgment and decree in Bungoma CMCC ELC Case No 14 of 2018 delivered on 20th February 2020 in favour of Paul Lutoti Khawanga, pending their appeal. The respondent opposed, arguing partial execution, a 7-month unexplained delay, no arguable appeal, and incompetence under Order 9 Rule 9 due to a change of advocates from Bulimo & Company to Situma & Company without leave. The court first held that although Order 9 Rule 9 was breached, following Tobias M. Wafubwa v Ben Butali, such failure is not fatal absent prejudice, and an appeal is new proceedings in which parties may choose counsel freely. On the merits, the court applied Order 42 Rule 6(2): the applicants failed to demonstrate tangible substantial loss, merely alleging it; the 7-month delay was unexplained and appeared designed to scuttle execution once the respondent sought police assistance; and only the security limb was satisfied through willingness to abide by conditions. Since the three conditions are conjunctive, the application failed. The court dismissed the motion with costs to the respondent on 22nd October 2020.

Key legal issues

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01

Competency of the application under Order 9 Rule 9

Holding

Although there was a violation of Order 9 Rule 9, the application was properly filed by the incoming firm as no prejudice was alleged

Reasoning

The Applicants were represented by Bulimo & Company Advocates at trial and on the memorandum of appeal, but Situma & Company Advocates filed the stay application without an application or consent. However, following Tobias M. Wafubwa v Ben Butali, non-compliance with Order 9 Rule 9 is not fatal where it does not affect the core of the dispute or cause prejudice; and an appeal constitutes new proceedings in which parties may freely choose counsel. The Respondent alleged no prejudice.

p. 2
02

Substantial loss

Holding

Not demonstrated in tangible terms; mere allegation of loss is insufficient

Reasoning

Other than a bare assertion that the Applicants would suffer substantial loss and damage if the appeal succeeded, no specifics were given. Citing Kenya Shell v Benjamin Kibiru and Machira v East African Standard (No 2), the court held that substantial loss is the cornerstone of stay jurisdiction and must be proved with specific details and particulars. The Applicants failed to discharge this burden.

p. 3
03

Unreasonable delay

Holding

The 7-month delay in filing the application was unexplained and unreasonable

Reasoning

Judgment was delivered on 20th February 2020 and the appeal filed 4 days later, but the stay application was only filed on 14th September 2020, apparently in reaction to the Respondent's 8th September 2020 application for police assistance in execution. No explanation was offered; the assertion that the application was brought promptly could not stand against an unexplained 7-month delay.

p. 3
04

Security

Holding

Willingness to abide by any conditions imposed by the Court sufficed as an offer of security

Reasoning

The averment that the Applicants would expedite the appeal was not security within Order 42 Rule 6(2). However, the Applicants' statement in the motion that they were ready and willing to abide by any conditions set by the Court demonstrated willingness to satisfy any requirements for due performance of a decree ultimately binding on them, satisfying this limb.

p. 3

Legal principles established

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  • Failure to comply with Order 9 Rule 9 (change of advocates after judgment) is not fatal where no prejudice is caused, and an appeal is new proceedings so a party may change counsel without leave
  • Substantial loss must be proved in specific, tangible terms; mere allegation is insufficient for a stay
  • The three conditions in Order 42 Rule 6(2) are conjunctive and all must be satisfied

Court orders

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  1. 1.The Notice of Motion dated 16th September 2020 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure ActSections 3 and 3A
  • Constitution of KenyaArticle 159

Cases cited (3)

  • TOBIAS M. WAFUBWA .V. BEN BUTALI
    2017 eKLR
  • KENYA SHELL LTD .V. BENJAMIN KIBIRU & ANOTHER
    1986 KLR 410
  • MACHIRA T/A MACHIRA & COMPANY ADVOCATES .V. EAST AFRICAN STANDARD (NO 2)
    2002 2 KLR 63
On appeal from
Bungoma Chief Magistrate's Court (Environment and Land Court)
BUNGOMA CMCC ENVIRONMENT AND LAND COURT CASE No 14 of 2018
Jurisdiction invoked
Order 42 Rule 6(1) and Order 51 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mossy Khaemba Muchanga & Davis Wabwile Muchanga v Paul Lutoti Khawanga [2020] KEELC 951 (KLR)", Case Analysis (2020). Environment and Land Court Bungoma Civil Appeal No 3 of 2020 (Notice of Motion dated 16th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/951/eng@2020-10-22

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