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ELCPartially AllowedNotice of Motion dated 2nd December, 2019 (Appeal against Judgment in Mutomo SPMCC No. 7 of 2018)· [2020] KEELC 1368 (KLR)

Musilili Kilonzo & another v Josephine Selle Juma (Suing on behalf of Mbithe Mutyambai (deceased) [2020] KEELC 1368 (KLR)

Environment and Land Court
18 September 2020
OAO.A. Angote
985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court stopped an eviction and title transfer pending appeal because evicting the occupants would cause them substantial loss they couldn't undo.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 2nd December, 2019 in which the Appellants sought a stay of execution of an ex parte eviction order issued on 12th November, 2019 by Hon. Z.J. Nyakundi (Senior Principal Magistrate) in Mutomo Civil Suit No. 7 of 2018, and a setting aside of the ex parte proceedings. The lower court had, by judgment and decree, issued a permanent injunction restraining the Appellants and their relatives from entering plots 519 and 532 Kaatene Adjudication Section, Mutha, Mutomo Sub-County, and directed that their names be deleted from the land register and the Respondent registered as owner. The Appellants, who had filed an appeal against that judgment, contended that the appeal would be rendered nugatory absent a stay. The Respondent opposed, asserting the appeal had no chances of success, that substantial loss had not been demonstrated, and sought security for costs and prosecution of the appeal within 120 days. Guided by Order 42 Rule 6(2) of the Civil Procedure Rules and the Court of Appeal's decision in Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga, the court found that the Appellants' occupation was uncontroverted and that eviction and deregistration would occasion them substantial loss, and that the application was filed without unreasonable delay. Security was held unnecessary since the land would subsist after the appeal. The court allowed the motion, granting a stay of execution of the judgment and decree pending the hearing and determination of the appeal, with each party bearing their own costs.

Key legal issues

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01

Whether substantial loss was demonstrated to warrant stay of execution pending appeal

Holding

Eviction from and deregistration in respect of the suit property would occasion the Appellants substantial loss before the appeal is heard

Reasoning

The Appellants' occupation of the suit property was uncontroverted and acknowledged by the lower court's judgment, which restrained them and their relatives from accessing the land. Eviction would force them to find another parcel and put up new structures, incurring substantial loss before the appeal is determined. The application was also filed without unreasonable delay.

p. 2
02

Whether security for due performance of the decree was necessary

Holding

No security was ordered because the land itself endures regardless of the appeal's outcome

Reasoning

Unlike cases where the subject matter may be dissipated, the suit land will subsist even after the appeal is heard and determined. Accordingly, the court held an order for security for due performance of the decree unnecessary and allowed the application without imposing that condition.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for granting stay of execution
  • Stay requires substantial loss, absence of unreasonable delay, and security where ordered, under Order 42 Rule 6(2)

Court orders

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  1. 1.Pending the hearing and determination of the Appeal, there be a stay of execution of the Judgment and Decree dated 18th September, 2019 and issued on 1st December, 2019 in Mutomo SPMCC No. 7 of 2018
  2. 2.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
On appeal from
Senior Principal Magistrate's Court, Mutomo
Civil Suit No. 7 of 2018 (Mutomo SPMCC No. 7 of 2018)
Jurisdiction invoked
Appellate jurisdiction over subordinate court decree; Order 42 Rule 6(2) 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, "Musilili Kilonzo & another v Josephine Selle Juma (Suing on behalf of Mbithe Mutyambai (deceased) [2020] KEELC 1368 (KLR)", Case Analysis (2020). Notice of Motion dated 2nd December, 2019 (Appeal against Judgment in Mutomo SPMCC No. 7 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1368/eng@2020-09-18

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