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ELCDismissedNot stated in the judgment· [2020] KEELC 1345 (KLR)

Lucy Watiri Muburi v Njoroge F.A Wachira & another [2020] KEELC 1345 (KLR)

Environment and Land Court
17 September 2020
4,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a refused to halt eviction because the defendants had no valid appeal, proved no substantial loss, and offered no security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (J G Kemei, J) determined two interlocutory motions arising from a land suit in which judgment had been entered for the Plaintiff on 27/9/18, ordering the Defendants to vacate within 90 days, failing which eviction would issue. The Defendants' motion dated 15/6/2020 sought stay of execution of the judgment of 27/9/18 and of the court's ruling of 12/5/2020 (which had dismissed their earlier motion and allowed the Plaintiff's eviction motion), plus a notice to show cause concerning their permanent houses, crops and tea bushes. The Plaintiff's motion dated 16/5/2020 sought substitution of the auctioneer, the original auctioneer having failed to carry out the eviction on 11/6/2020 during COVID-19 movement restrictions. The court framed four issues and applied the settled Order 42 Rule 6(2) criteria of substantial loss, absence of unreasonable delay and security. It held that no competent appeal was pending before the Court of Appeal, the Defendants' Notice of Appeal having been filed out of time and without leave, so the stay application stood 'on quick sand'. The Defendants had also failed to prove substantial loss — residing on the land and unquantified investments did not suffice, execution being a lawful process — and had offered no security. The notice to show cause prayer was deemed abandoned. On the substitution of the auctioneer, the court found no personal misconduct or wilful refusal by the auctioneer, an officer of the court, and declined to substitute him. Both applications were dismissed with each party bearing their own costs.

Key legal issues

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01

Whether execution of the judgment of 27/9/18 should be stayed pending appeal

Holding

The prayer was dismissed because no competent appeal was pending to anchor the application.

Reasoning

The judgment was delivered on 27/9/18 and the Defendants admitted failing to file an appeal within 14 days. Their Notice of Appeal filed on 4/6/2020 was out of time and without leave, leave being the subject of pending applications CA 157 of 2019 and CA 46 of 2020 in the Court of Appeal at Nyeri. Without a competent appeal, the stay application lacked a foundation.

p. 3
02

Whether the Defendants proved substantial loss

Holding

They did not; the application for stay of the 12/5/2020 ruling failed on this ground.

Reasoning

The Defendants asserted occupation of 10 acres, permanent houses, tea bushes and parental graves, but never quantified the alleged loss. Living on the suit land is not enough; execution pursuant to a court order is a lawful process and does not constitute substantial loss. No draft memorandum of appeal was annexed to demonstrate commitment to the appeal.

p. 5
03

Whether security for the due performance of the decree was necessary

Holding

Security was required and its absence defeated the stay application.

Reasoning

The Defendants contended that security was unnecessary because the subject matter was land. The court disagreed, holding that an applicant must show readiness and willingness to provide security, since security guarantees due performance of the decree and there would be costs to be met in the appellate court.

p. 5
04

Whether the auctioneer should be substituted

Holding

The substitution was declined.

Reasoning

The auctioneer, an officer of the court, had acted on the orders by writing to the OCS Kanyenyaini; his failure to execute was attributable to COVID-19 movement restrictions, not personal misconduct or wilful refusal. Absent such evidence, the plaintiff's right to elect its auctioneer did not justify substitution.

p. 5

Legal principles established

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  • A stay of execution pending appeal requires satisfaction of substantial loss, absence of unreasonable delay and furnishing of security under Order 42 Rule 6(2).
  • Execution of a decree is a lawful process and does not by itself amount to substantial loss.
  • An applicant for stay must show readiness and willingness to provide security; the subject matter being land does not dispense with security.
  • A party retains the right to elect which auctioneer to undertake a court process, and substitution requires evidence of misconduct or wilful refusal by the auctioneer.

Court orders

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  1. 1.The Defendants' application for stay of execution of the judgment of 27/9/18 and subsequent rulings and orders pending appeal is dismissed.
  2. 2.The Defendants' application for stay of execution of the ruling of 12/5/2020 pending appeal is dismissed.
  3. 3.The prayer for a notice to show cause regarding the Defendants' permanent houses, food crops and tea bushes is treated as abandoned and not granted.
  4. 4.The Plaintiff's application for substitution of the auctioneer is declined.
  5. 5.Each party to bear their own costs.
Jurisdiction invoked
Sections 1A & 1B of the Civil Procedure Act and Order 51 Rules 1, 2, 3 & 4 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, "Lucy Watiri Muburi v Njoroge F.A Wachira & another [2020] KEELC 1345 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1345/eng@2020-09-17

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