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ELCDismissedNot stated in the judgment text· [2021] KEELC 1221 (KLR)

Ndinguri Macharia & 3 others v George Mwangi Kabongo & 2 others [2021] KEELC 1221 (KLR)

Environment and Land Court
4 November 2021
JOJ. O. Olola
1,200 words in judgment
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The bottom line

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A Kenyan court dismissed a bid to halt execution of a land judgment because the applicants could not show they would suffer any real loss.

What this practically means

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Executive summary

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The Appellants, sons of the late Francis Macharia Kanyungu, moved the Environment and Land Court at Nyeri by Notice of Motion dated 6th April 2021 seeking a stay of execution of the judgment and decree of the Nyeri Chief Magistrate's Court (Hon. Wendy Kagendo) delivered on 29th November 2019 in Nyeri CMCC 247 of 2018, pending the hearing of their appeal. They argued that the appeal had realistic chances of success, that the Respondents had commenced execution, and that they would suffer irreparably and the appeal would be rendered nugatory if stay was denied. The Respondents opposed, contending that the Appellants had not identified the parcel they complained about, that the original parcel had been subdivided in 1984, that the Appellants resided on a different parcel created in 2014, and that the Appellants had ignored a prior court order by continuing to cultivate the Respondents' land. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, Olola J reiterated that substantial loss is the cornerstone of a stay application and that mere commencement of execution does not constitute substantial loss. Perusing the pleadings and the judgment appealed from, the court found that the Appellants had never claimed to reside on the suit properties; the subordinate court had only restrained them from trespassing and committing acts of waste, which could not cause them substantial loss. The application was dismissed with costs in the appeal.

Key legal issues

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01

Whether the Appellants demonstrated substantial loss

Holding

They did not; the decree only restrains trespass and waste on properties they never claimed to occupy

Reasoning

The court perused the pleadings and judgment from the subordinate court and found no claim by the Appellants that they resided on the suit properties. The judgment appealed from merely restrained trespassing and acts of waste. Such orders, the court held, could not cause the Appellants the substantial loss alleged in the stay application.

p. 2
02

Balance of interests between appellants and the successful litigant

Holding

The court must balance the appellants' right of appeal against the respondent's right to enjoy the fruits of judgment

Reasoning

Relying on established principles, the court held that stay preserves the subject matter so the appeal is not nugatory, but the successful litigant should not be deprived of the fruits of judgment without justification. On the facts the balance tilted against the Appellants, who failed to establish irreparable harm.

p. 2

Legal principles established

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  • The purpose of a stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, balanced against the successful litigant's right to the fruits of judgment
  • Mere commencement or likelihood of execution does not in itself amount to substantial loss under Order 42 Rule 6

Court orders

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  1. 1.Dismissal of the Appellants' Notice of Motion seeking stay of execution of the judgment and decree in Nyeri CMCC 247 of 2018
  2. 2.Costs of the application to be in the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (3)

  • James Wangalwa and Another –vs- Agnes Naliaka Cheseto
    (2012) eKLR
  • Silverstein –vs- Chesoni
    (2002) 1 KLR 867
  • Mukuma –vs- Abuoga
On appeal from
Nyeri Chief Magistrate's Court
Nyeri CMCC 247 of 2018
Jurisdiction invoked
Order 42 Rule 6 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, "Ndinguri Macharia & 3 others v George Mwangi Kabongo & 2 others [2021] KEELC 1221 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1221/eng@2021-11-04

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