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ELCPartially AllowedNot stated in judgment (arising from Machakos CMCC No. 490 of 2011)· [2020] KEELC 2630 (KLR)

Kivuva Maundu Muinde v Musau M. Muinde [2020] KEELC 2630 (KLR)

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

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Kenya's Environment and Land Court paused execution of a land sub-division order because carrying it out during an appeal could cause loss that money cannot fix.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote, J) on a Notice of Motion dated 14th August 2019 in which the Appellant sought a stay of execution of orders made by A.G. Kibiru (CM) in Machakos Chief Magistrate Civil Case No. 490 of 2011 on 10th April 2019, and a temporary injunction pending appeal restraining the Respondent from sub-dividing, selling or alienating land parcel Machakos/Kiandani/1963. The lower court had declared the parties joint owners of the suit property, held that the Appellant holds half in trust for the Defendant, and directed the Land Registrar, Machakos, to sub-divide the parcel into two equal parts with regard to the parties' respective developments. The Appellant argued substantial loss would follow sub-division; the Respondent countered that the appeal raised no arguable issues and that he occupied only 25 feet x 100 feet with no intention to sell. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the Court of Appeal decision in Kenya Shell Limited, the court held that sub-division would change the character of the land and occasion the Appellant substantial loss if the portion was sold or charged, and that the application was brought within a reasonable time. Stay of execution pending appeal was granted. The court declined to consider the injunction prayer since the Appellant held the Title Deed, and ordered each party to bear his own costs.

Key legal issues

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01

Whether substantial loss would result to the Appellant absent a stay

Holding

Yes - sub-division would change the character of the land and the Respondent's portion would likely pass out of the Appellant's reach

Reasoning

The lower court decreed cancellation of the title and sub-division of the suit property into two equal parts. Once the Respondent's share is registered, he could sell or charge it, placing it beyond the Appellant's reach even if the appeal succeeds. This change of character of the land constitutes substantial loss warranting a stay under Order 42 Rule 6(2), following Kenya Shell Limited.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

Yes - the application was filed within a reasonable time

Reasoning

The decree was delivered on 10th April 2019 and the Notice of Motion was dated 14th August 2019. The court found the application filed within a reasonable time, satisfying the second limb of Order 42 Rule 6(2). No security issue was separately resolved in the orders.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution
  • Under Order 42 Rule 6(2), no stay shall be granted unless substantial loss may result, the application is made without unreasonable delay, and security is given

Court orders

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  1. 1.An order for stay of execution of the orders of the court in Machakos Chief Magistrate Civil Case No. 490 of 2011 delivered on 10th April 2019, pending the hearing and determination of the Appeal
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4

Cases cited (1)

  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
On appeal from
Chief Magistrate's Court, Machakos
Machakos Chief Magistrate Civil Case No. 490 of 2011
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, "Kivuva Maundu Muinde v Musau M. Muinde [2020] KEELC 2630 (KLR)", Case Analysis (2020). Not stated in judgment (arising from Machakos CMCC No. 490 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2630/eng@2020-05-15

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