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ELCPartially AllowedNot stated in judgment (Application dated 11th December, 2019 arising from an Appeal against Kithimani M.E.L.C Case No. 27 of 2018)· [2020] KEELC 1056 (KLR)

Esther Wandii Maingi & another v Macharia Chege [2020] KEELC 1056 (KLR)

Environment and Land Court
9 October 2020
1,236 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who lost a land case can halt execution of that judgment pending appeal, without depositing money, if selling the land would make the appeal pointless.

What this practically means

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Executive summary

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The Appellants/Applicants filed a Notice of Motion dated 11th December 2019 seeking a temporary stay of execution of the judgment and decree in Kithimani M.E.L.C Case No. 27 of 2018 pending the hearing and determination of their appeal. The 1st Appellant deponed that she was duped by a person masquerading as an advocate, who failed to attend trial; she discovered this only upon being served with the decree, and her application to set aside the judgment was dismissed on 30th October 2019. The Respondent opposed, asserting the Appellants were duly served, that the 1st Appellant entered appearance but filed no defence, and urged that the Appellants deposit the decretal amount in a joint interest-earning account as security. The court framed a single issue: whether the Applicants were entitled to a stay of execution pending appeal. Applying Order 42 Rule 6 of the Civil Procedure Rules and the Court of Appeal's decision in Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga, the judge found that registration of the suit land in the Respondent's name could result in its sale to a third party, occasioning the Appellants substantial loss before the appeal was heard. However, as the alternative prayer for special damages was not awarded by the trial court and the suit property would remain intact pending the appeal, the court declined to order security. The application was allowed: a temporary stay of execution was granted, with each party bearing their own costs. The judgment was delivered at Machakos on 9th October 2020 by O.A. Angote, J.

Key legal issues

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01

Whether the Applicants are entitled to a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Stay granted. The court found substantial loss because registration of the land in the Respondent's name could result in its sale to a third party, rendering the appeal nugatory; security was dispensed with as no decretal sum was awarded.

Reasoning

The court applied Order 42 Rule 6(2), which requires substantial loss, absence of unreasonable delay, and security. Relying on the Kenya Shell case, it treated substantial loss as the cornerstone. The decree directed rectification of the register to remove the 2nd Appellant as proprietor, which could lead to the land being sold to a third party and taken beyond the Appellants' reach. Since no special damages were awarded and the property would remain intact, ordering security was unnecessary. The application, dated 2nd December 2019, was allowed with no order as to costs.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for granting stay of execution.
  • Where no decretal sum was awarded and the suit property will remain intact pending appeal, the court may dispense with security under Order 42 Rule 6(2)(b).

Court orders

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  1. 1.There be a temporary stay of execution of the Judgment and Decree in Kithimani M.E.L.C Case No. 27 of 2018 pending the hearing and final determination of the Appeal
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 63(c) and (e)
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6 (including 6(2))
  • Civil Procedure Rules (referred to in Kenya Shell quote)Order 41 Rule 4

Cases cited (2)

  • Superior Homes (Kenya) Ltd vs. Musango Kithome (2019)
    eKLR
  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
On appeal from
Kithimani Magistrates' Court (M.E.L.C)
27 of 2018
Jurisdiction invoked
Sections 1A, 1B and 63(c) and (e) of the Civil Procedure Act; Order 22 Rule 22 and Order 42 Rule 6 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, "Esther Wandii Maingi & another v Macharia Chege [2020] KEELC 1056 (KLR)", Case Analysis (2020). Not stated in judgment (Application dated 11th December, 2019 arising from an Appeal against Kithimani M.E.L.C Case No. 27 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1056/eng@2020-10-09

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