Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the excerpt· [2021] KEELC 1117 (KLR)

Peter Mwebi & 10 others v James Safari Kombe & 11 others [2021] KEELC 1117 (KLR)

Environment and Land Court
9 November 2021
NMN.A. MATHEKA
2,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Mombasa court refused to pause execution of a land judgment and rejected a contempt claim, ruling the losing party met none of Kenya's stay requirements.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (N.A. Matheka, J) determined two applications by the Defendants/Applicants. The first, dated 3rd June 2021 and brought under Order 22 Rule 18, Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, sought stay of execution of the decree pending the Defendants' appeal to the Court of Appeal, the Applicants apprehending demolition of their houses on the suit property. The Plaintiffs/Respondents opposed, contending there was no evidence of the Applicants' houses on Plot No. 502/I/MN, no approved building plans, no proof of ownership or occupation, and that no security had been offered. The court restated the Order 42 rule 6 conditions - substantial loss, absence of unreasonable delay and security - and the two-limb test requiring an arguable appeal and that the appeal not be rendered nugatory, drawing on Reliance Bank v Norlake Investments, Chris Munga N. Bichange, Mohamed Salim and Carter & Sons Ltd. Finding the Applicants had fulfilled none of the grounds, the court dismissed the application with costs. The second application, dated 26th July 2021 under Section 14 of the Environment and Land Court Act, sought committal of the 7th Plaintiff/Respondent, Maurice Muli Mutua, to civil jail or a fine up to Kshs 20,000,000 for disobeying the stay orders of 8th June 2021. The 7th Respondent denied service of the order and asserted he had taken possession pursuant to the decree executed on 16th October 2019. Holding there was no evidence of service and that the application was overtaken by events, the court dismissed it with costs to the 7th Respondent. Both applications were dismissed on 9th November 2021.

Key legal issues

#
01

Conditions for stay of execution pending appeal under Order 42 rule 6

Holding

The Applicants failed to fulfil any of the required conditions - arguable appeal, nugatory aspect, substantial loss, absence of unreasonable delay and security - and the stay application was dismissed.

Reasoning

The court restated the Order 42 rule 6 conditions and the two-limb test from Reliance Bank Ltd v Norlake Investments Ltd and Chris Munga N. Bichange v Richard Nyagaka Tongi: arguable appeal and the appeal not being rendered nugatory. Though a notice of appeal had been filed, the court was not persuaded on either limb and found none of the grounds fulfilled.

p. 4
02

Contempt of court - committal of the 7th Plaintiff/Respondent

Holding

The contempt application failed because there was no evidence of service of the stay order on the 7th Respondent and the application was overtaken by events.

Reasoning

The 7th Respondent contended he was never served with the stay order in respect of his two plots, that the decree had already been executed and he had taken possession before 8th June 2021. The court found no evidence of service and held the application was overtaken by the dismissal of the stay application, dismissing it with costs to the 7th Respondent.

p. 4

Legal principles established

#
  • An applicant for stay of execution pending appeal must demonstrate substantial loss, unreasonable delay in bringing the application, and furnish security for due performance of the decree
  • The applicant must show an arguable appeal and that the appeal, if successful, would be rendered nugatory absent stay; both limbs must be demonstrated
  • The right of appeal must be balanced against the plaintiff's right to enjoy the fruits of the judgment

Court orders

#
  1. 1.The application dated 3rd June 2021 seeking stay of execution pending appeal is dismissed with costs
  2. 2.The application dated 26th July 2021 seeking contempt orders against the 7th Plaintiff/Respondent is dismissed with costs to the 7th Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 22 Rule 18
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • The Environment and Land Court Act, 2011Section 14

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery Vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
Jurisdiction invoked
Order 22 Rule 18 and Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Section 14 of the Environment and Land Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Mwebi & 10 others v James Safari Kombe & 11 others [2021] KEELC 1117 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1117/eng@2021-11-09

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