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ELCDismissedELC Appeal No. 53 of 2019· [2020] KEELC 1474 (KLR)

Andrew Nzeki (Being sued as Chairman of All in Christ Church Tala Region & 6 others v Paul Muema Mwangangi (Suing as Trustee and Chairman on behalf of Gospel Community Church & Ministries [2020] KEELC 1474 (KLR)

Environment and Land Court
30 July 2020
OAO. A. Angote
2,156 words in judgment
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The bottom line

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The Environment and Land Court refused to pause a church land judgment because the losing side couldn't show they'd lose anything they were actually using.

What this practically means

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Executive summary

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This Ruling of the Environment and Land Court at Machakos (O.A. Angote, J) determined the Appellants' Notice of Motion dated 13th November 2019 seeking stay of execution of the Judgment and Decree of Hon. D. Orimba, Senior Principal Magistrate, delivered on 2nd October 2019 in Kangundo SPMCC No. 126 of 2019, pending hearing of ELC Appeal No. 53/2019. The Respondent had successfully sued the Appellants over the Mukunike church premises, and the trial court ordered reinstatement of the name 'Gospel Community Church, Mukunike' and restrained interference with the Respondent's access and occupation. The Application was brought under Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 3 & 3A of the Civil Procedure Act. The court identified four issues: whether the stay threshold was met, whether irreparable harm would result, whether the Application was filed in good time, and whether the Appeal met the prima facie threshold. Applying Order 42 Rule 6 and the authorities on substantial loss (Kenya Shell Ltd, Mukuma v Abuoga, and James Wangalwa), the court held that the Appellants had not been in use of the suit property since the injunction of 11th July 2018, so the subsisting status quo was the Respondent's usage; the Appellants would therefore suffer no substantial loss. Though filing within two months was not inordinate delay, the Respondent had already executed the Judgment, which the court could not reverse before hearing the Appeal. The Application was dismissed with costs.

Key legal issues

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01

Whether the Appellants demonstrated substantial loss under Order 42 Rule 6(2)(a)

Holding

No substantial loss shown, since the Appellants have not been in use of the suit property since 11th July 2018 and the subsisting status quo is the Respondent's usage

Reasoning

The court found that the injunction issued on 11th July 2018, later confirmed by the trial Judgment, meant the Appellants were never in possession after that date. The status quo therefore favours the Respondent, and the Appellants' continued worship in temporary structures pending appeal causes no substantial loss.

p. 3
02

Whether the Application was filed without unreasonable delay

Holding

Filing within two months of the Judgment cannot be said to be inordinate delay, but the delay was rendered fatal because the Respondent had already executed the Judgment

Reasoning

The Judgment was delivered on 2nd October 2019 and the Application filed on 13th November 2019 (41 days later). The court accepted this was not inordinate delay, but held that since the Respondent had already executed the Judgment, that action could not be reversed before hearing the Appeal.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • An applicant for stay must show that execution will irreparably affect the essential core of the applicant as the successful party in the appeal

Court orders

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  1. 1.The Application dated 13th November, 2019 seeking stay of execution of the Judgment and Decree of the lower court delivered on 2nd October, 2019 is dismissed
  2. 2.Costs of the Application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 3 & 3A

Cases cited (3)

  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    (2012) eKLR
  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
  • Mukuma vs. Abuoga
    (1988) KLR 645
On appeal from
Senior Principal Magistrate's Court (Kangundo)
Kangundo SPMCC No. 126 of 2019
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules, Sections 3 & 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 (1)

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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, "Andrew Nzeki (Being sued as Chairman of All in Christ Church Tala Region & 6 others v Paul Muema Mwangangi (Suing as Trustee and Chairman on behalf of Gospel Community Church & Ministries [2020] KEELC 1474 (KLR)", Case Analysis (2020). ELC Appeal No. 53 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1474/eng@2020-07-30

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