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ELCDismissedGithongo PMC ELC No. 18 of 2018 (Appeal thereto)· [2021] KEELC 1214 (KLR)

Grace Karamana v Fridah Mwari & another [2021] KEELC 1214 (KLR)

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

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A Kenyan landowner's bid to freeze execution of a judgment failed because she offered no documents proving she would suffer substantial loss.

What this practically means

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Executive summary

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By an application dated 30/6/2021, the appellant sought stay of execution of the judgment delivered in Githongo PMC ELC No. 18 of 2018 on 17/5/2021 pending the hearing and determination of her appeal. She swore that she lives on the suit land registered in the name of her deceased husband, Edward Kirimi, that she was vested with the land by a decree in Meru High Court Succession Cause No. 298 of 2003 which the lower court allegedly overlooked, and that the application was brought without delay. The respondents opposed through preliminary objections contending the appeal offended Order 9 Rule 9 of the Civil Procedure Rules on change of advocates. Following the Court of Appeal decision in Tobias M. Wafubwa v Ben Butali, the court held an appeal after judgment is a new proceeding in which a party may choose new representation, and found the appeal and application competently before the court. On the stay itself, the court restated the Order 42 Rule 6(1) conditions: substantial loss, no inordinate delay, and security for due performance. Applying Godfrey Wainaina Kinaynjui v Joseph Kwikya Musaa, it found the appellant offered only assertions of decades of residence and irreparable harm without documentary support, and demonstrated no threatened or impending execution such as notices. The court therefore dismissed the application with costs on 3rd November 2021.

Key legal issues

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01

Competence of the appeal under Order 9 Rule 9

Holding

The appeal and application are competently before the court since an appeal is a new proceeding allowing change of advocates

Reasoning

Relying on Tobias M. Wafubwa v Ben Butali, the court held that after judgment an appeal is a fresh proceeding before a court operating under different rules, so the appellant was entitled to instruct new counsel without the consent required by Order 9 Rule 9. The preliminary objections therefore failed.

p. 1
02

Whether stay of execution conditions were met

Holding

The appellant failed to demonstrate substantial loss; the application was dismissed with costs

Reasoning

The court set out the three Order 42 Rule 6(1) conditions and found the appellant made only bare assertions of living on the land for decades and of irreparable harm, without documentary proof, and did not show any threatened execution such as notices. The balancing exercise therefore did not favour a stay.

p. 1

Legal principles established

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  • Once judgment is entered, an appeal is not a continuation of the lower court proceedings but a new proceeding in which a party may choose new legal representation, so Order 9 Rule 9 does not bar the appeal
  • A stay applicant under Order 42 Rule 6(1) must demonstrate substantial loss, no inordinate delay, and offer security for due performance of the decree
  • Substantial loss must be supported by documentary evidence, not mere assertions

Court orders

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  1. 1.The application for stay of execution is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6(1)

Cases cited (2)

  • Tobias M. Wafubwa –vs- Ben Butali
    [2017] eKLR
  • Godfrey Wainaina Kinaynjui & Another –vs- Joseph Kwikya Musaa
    [2020] eKLR
On appeal from
Githongo Principal Magistrate's Court
ELC No. 18 of 2018
Jurisdiction invoked
Order 42 Rule 6(1) 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, "Grace Karamana v Fridah Mwari & another [2021] KEELC 1214 (KLR)", Case Analysis (2021). Githongo PMC ELC No. 18 of 2018 (Appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1214/eng@2021-11-03

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