Charles Mwangi Kiiru v Boniface Maina Gichomo & Joseph Mwangi Thuo [2021] KEELC 237 (KLR)
The bottom line
#A landowner lost his bid to pause execution of an adverse possession judgment because he applied too late and proved no harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The two and a half month delay was inordinate and unexplained
Judgment was delivered on 30th June 2021 and the application filed on 9th September 2021. Only a Notice of Appeal was filed on 1st July 2021, and a request for proceedings on 12th July 2021 could not have hindered filing the application. No reason for the delay was advanced, and following Jaber Mohsen Ali v Priscillah Boit, even a delay of days is inordinate.
Whether the Applicant demonstrated substantial loss
No evidence of substantial loss was furnished; bona fide purchaser claims were already determined in the judgment
The Applicant merely asserted loss without substantiation. The issues of bona fide purchase and overriding interests were dealt with in paragraphs 63 and 64 of the judgment and cannot found substantial loss. Since the Respondent was in occupation and the Applicant had even offered occupation and the title deed as security, there was nothing for the court to prevent.
Whether the appeal would be rendered nugatory
The Applicant failed to demonstrate nugatory-ness
The onus is on the Applicant to show the appeal would be of little or no legal consequence if stay is denied. There was no evidence of who currently occupies the land, and the court cannot determine the merits of the appeal without sitting on appeal over itself. The application therefore failed on this limb too.
Costs of the application
Costs follow the event; the Respondent is entitled to costs
Under section 27 of the Civil Procedure Act the court has discretion over costs, guided by the conduct of the parties towards the suit and its subject matter. Having dismissed the application, the Respondent is entitled to costs.
Legal principles established
#- An appeal does not operate as a stay; a party desiring stay must apply to court
- The conditions for stay under Order 42 rule 6(2) are substantial loss, application without unreasonable delay, and security
- Mere assertion of substantial loss without substantiation cannot ground a stay
- What amounts to inordinate delay differs from case to case, but even a delay of one day is delay
Court orders
#- 1.The Notice of Motion Application dated 9th September 2021 is dismissed entirely
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules; section 27 of the Civil Procedure Act; Article 159(2)(d) of the Constitution (considered and rejected as a cure for procedural abuse)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Agricultural Research Institute (KARI) v Ali, Chairman Isahakia Self Help Group (Sued on his behalf and on behalf of members of the Group) & another (Environment & Land Case 103 of 2019) [2025] KEELC 39 (KLR)[2025] KEELC 39 (KLR)21 Jan 2025
- Ogutu v Maya Duty Free Limited (Employment and Labour Relations Cause 13 of 2020) [2024] KEELRC 299 (KLR)[2024] KEELRC 299 (KLR)16 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Charles Mwangi Kiiru v Boniface Maina Gichomo & Joseph Mwangi Thuo [2021] KEELC 237 (KLR)", Case Analysis (2021). Notice of Motion Application dated 9th September 2021 (arising from consolidated adverse possession suits). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/237/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.