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ELCDismissedTigania PM E&L 53 of 2017 (Appeal lodged 24.3.2021); Notice of Motion dated 28.2.2021· [2021] KEELC 1192 (KLR)

Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] KEELC 1192 (KLR)

Environment and Land Court
3 November 2021
761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Meru dismissed a stay application because the appellant filed it late, proved no substantial loss, offered no security, and lacked leave to appeal.

What this practically means

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Executive summary

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The applicant sought stay of execution of a ruling delivered on 18.3.2021 in Tigania PM E&L 53 of 2017, pending an appeal lodged on 24.3.2021. The appellant contended that the lower court overlooked a decision in Meru HC Succession Cause No. 82 of 2002 and issued orders whose effect was to amend or nullify a confirmed grant, and that implementation would give the respondent more land than exists on the ground. The respondent opposed, noting the underlying judgment was delivered on 21.11.2019, the appellant's application for review was dismissed on 18.3.2021, that he had occupied part of the suit land since 2002, and that no substantive orders capable of execution had been granted. The court restated the three conditions for stay: substantial loss, absence of unreasonable delay and an offer of security. Perusing the lower court file, the court observed that the appeal arose from an order made under Order 45 of the Civil Procedure Rules, which under Section 75 of the Civil Procedure Act is appealable only with leave, and no leave had been sought or obtained. The court further found the application late, no demonstrated substantial loss or imminent danger of execution, and no offer of security. Applying Jaber Mohsen and Focin Motorcycle, the court dismissed the application with costs.

Key legal issues

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01

Conditions for stay of execution pending appeal

Holding

Applicant failed to meet all three conditions: substantial loss, absence of delay and offer of security

Reasoning

The court found the application was brought late so as to deny the respondent the fruits of his judgment, that no leave to appeal from the Order 45 review ruling had been sought or obtained, and that no security was offered as a mark of good faith. The respondent had been in occupation of part of the suit land since 2002, negating imminent danger of execution.

p. 2
02

Appealability of review orders without leave

Holding

The appeal, arising from an Order 45 ruling, required leave under Section 75 of the Civil Procedure Act, which was never sought or obtained

Reasoning

The court perused the lower court file and found no indication that the appellant sought and obtained leave to appeal to the Environment and Land Court, undermining the competence of the appeal and the stay application founded upon it.

p. 1
03

Security for due performance of the decree

Holding

No offer to furnish security was made, which is fatal to a stay application

Reasoning

A successful party is entitled to enjoy the fruits of his judgment and an applicant for stay must show willingness to assure due performance of the decree eventually either way the appeal goes, as a mark of good faith; none was forthcoming here.

p. 2

Legal principles established

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  • An applicant for stay of execution must satisfy three conditions: substantive loss, no unreasonable delay, and an offer of security for due performance of the decree
  • An order made under Order 45 of the Civil Procedure Rules is appealable only with leave of the court making it under Section 75 of the Civil Procedure Act
  • A party seeking stay must demonstrate substantial loss with adequate and proper evidence, not merely assert it

Court orders

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  1. 1.The application dated 28.3.2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 75
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Civil Procedure RulesOrder 45

Cases cited (4)

  • Victory Construction –vs- BM (a minor suing through next friend one PMM
    (2019) eKLR
  • Century Oil Trading Co. Ltd –vs- Kenya Shell Ltd
    (2008) eKLR
  • Jaber Mohsen & Another
    (2014) eKLR
  • Focin Motorcycle Co. Ltd –vs- Ann Wambui Wangui & Another
    (2018) eKLR
On appeal from
Principal Magistrate's Court, Tigania
Tigania P.M. E&L 53 of 2017
Jurisdiction invoked
Section 75 of the Civil Procedure Act (appeal from Order 45 review order lies only with leave)

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, "Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] KEELC 1192 (KLR)", Case Analysis (2021). Tigania PM E&L 53 of 2017 (Appeal lodged 24.3.2021); Notice of Motion dated 28.2.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1192/eng@2021-11-03

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