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ELCPartially AllowedNotice of Motion dated 18th July 2019 (ELC, Kerugoya)· [2020] KEELC 1980 (KLR)

Eunice Nyambura Muthuci & 5 others v Kenneth Kinyua Wabetta & 5 others [2020] KEELC 1980 (KLR)

Environment and Land Court
29 May 2020
ECE.C. Cherono
1,362 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 Kerugoya court granted landowners only a two-month pause on execution because they proved delay was avoided but failed to show substantial loss or offer security.

What this practically means

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Executive summary

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This was a Notice of Motion dated 18th July 2019 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, in which six applicants sought stay of execution of a judgment and decree of the Environment and Land Court at Kerugoya delivered on 28th June 2019 dismissing their claim, pending an intended appeal. The applicants deponed that they had lived on and extensively developed the suit property all their lives and risked eviction and irreparable loss. The respondents opposed, arguing that no appeal had been filed, no security offered, and that the application should be struck out because it was drawn by an advocate, Charles Mbugua, who allegedly lacked a current practising certificate; the advocate responded with a further affidavit exhibiting a current certificate. The court found the application filed without unreasonable delay but held that the applicants failed to demonstrate substantial loss, since imminent execution of a lawful decree is not substantial loss, and that they had given no security for due performance of the decree - failures it described as fatal. Nevertheless, considering the suspension of the Court of Appeal at Nyeri, the concentration of Court of Appeal sittings in Nairobi and the COVID-19 lockdown, the court discretionarily granted a stay of execution for only two months, after which it lapses. The issue of the advocate's practising certificate was left moot, with liberty to the respondents to apply, and costs of the application were ordered to abide the intended appeal.

Key legal issues

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01

Unreasonable delay

Holding

Application filed promptly after Notice of Appeal; delay condition satisfied

Reasoning

Judgment was delivered on 28th June 2019, Notice of Appeal lodged on 11th July 2019 and the application filed on 18th July 2019, so the court confirmed the application was made without unreasonable delay under Order 42 Rule 6(2)(a).

p. 3
02

Substantial loss

Holding

Not established; lawful execution is not substantial loss

Reasoning

The applicants deponed they had lived on and developed the suit land all their lives and risked eviction, but the court held that imminent execution of a lawful decree is not substantial loss, and the court must balance the successful litigant's rights against the applicants' right of appeal.

p. 3
03

Security

Holding

Not given; fatal to the application

Reasoning

The applicants neither gave security nor undertook to comply with any order for due performance of the decree. Together with failure on substantial loss, this was fatal to the application under Order 42 Rule 6(2)(b).

p. 3
04

Discretionary limited stay

Holding

Stay granted for two months only due to suspension of Court of Appeal at Nyeri and COVID-19 lockdown

Reasoning

Despite failing the conditions, the court exercised discretion considering the suspension of the Nyeri Court of Appeal registry, sessions limited to Nairobi, and the COVID-19 lockdown, granting a two-month stay after which it lapses.

p. 3
05

Competence of counsel

Holding

Issue of unqualified representation left moot

Reasoning

The respondents alleged the advocate lacked a practising certificate; the advocate exhibited a current one in a further affidavit. The court held it inappropriate to determine the weighty issue on the papers and left it open.

p. 3

Legal principles established

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  • The conditions for stay under Order 42 Rule 6(2) - substantial loss, no unreasonable delay and security - must be satisfied; failure on substantial loss and security is fatal
  • Lawful execution of a decree does not by itself constitute substantial loss

Court orders

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  1. 1.Stay of execution of the judgment and decree of 28th June 2019 granted for only two (2) months from 29th May 2020, after which it lapses
  2. 2.Costs of the application to abide the intended appeal
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act 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, "Eunice Nyambura Muthuci & 5 others v Kenneth Kinyua Wabetta & 5 others [2020] KEELC 1980 (KLR)", Case Analysis (2020). Notice of Motion dated 18th July 2019 (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1980/eng@2020-05-29

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