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ELCDismissedC.ELC 17/2018 (Appeal); Notice of Motion dated 2nd July 2019· [2020] KEELC 2627 (KLR)

Joseph Ndambuki Kioko v Stanley Muia Makau [2020] KEELC 2627 (KLR)

Environment and Land Court
15 May 2020
OAO.A. Angote
674 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause execution of a judgment because the appellant showed no real harm — proving substantial loss is essential for any stay application.

What this practically means

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Executive summary

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The Appellant moved the Environment and Land Court at Machakos by Notice of Motion dated 2nd July 2019 seeking stay of execution of the judgment and consequential orders in C.ELC 17/2018 pending appeal. The decree of the learned Magistrate dated 4th April 2019 directed a Government Surveyor to reopen an access road passing through parcel Kalama/Muumandu/2160 to 2079 and issued a permanent injunction restraining the Defendant from blocking it. The Appellant, who did not defend the suit below, argued he would suffer substantial loss, being old and facing contempt proceedings, and that the Respondent would open the road and destroy food crops. The Respondent countered that the Appellant never defended the suit, was in contempt, and was willing to open the access road. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the Kenya Shell decision, holding that substantial loss is the cornerstone of the stay jurisdiction. It found the decree only opens an access road which the court can order closed if the appeal succeeds, and that the Appellant annexed no photographs evidencing crops that would be destroyed. Concluding that no substantial loss was demonstrated, the court dismissed the application with no order as to costs. Judgment dated, delivered and signed at Machakos on 15th May 2020 by O.A. Angote, Judge.

Key legal issues

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01

Whether substantial loss was established for purposes of Order 42 Rule 6(2)

Holding

No substantial loss shown; the decree merely opens an access road which can be closed if the appeal succeeds, and no evidence of crops was tendered

Reasoning

The court applied the Kenya Shell test, examining whether the appeal would be rendered nugatory without a stay. It found the decree only directs opening an access road; if the appeal succeeds, the court can order its closure. The Appellant also failed to annex photographs proving crops would be destroyed, so the substantial-loss threshold was not met and the application failed.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution; absent evidence of substantial loss, an appeal is rarely rendered nugatory

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 2nd July 2019 seeking stay of execution
  2. 2.No order as to 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
Magistrates' Court
C.ELC 17/2018
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Joseph Ndambuki Kioko v Stanley Muia Makau [2020] KEELC 2627 (KLR)", Case Analysis (2020). C.ELC 17/2018 (Appeal); Notice of Motion dated 2nd July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2627/eng@2020-05-15

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