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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 1878 (KLR)

Samwel Nyabichere Muchemerson v Daniel Sereria Makara & 3 others [2021] KEELC 1878 (KLR)

Environment and Land Court
28 September 2021
2,004 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court paused execution of a judgment against landowners, but only if they file their appeal and pay Kshs 20,000 security within 30 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (G.M.A. Ongondo, J) determined twin applications arising from a judgment delivered on 28th July 2020 and a decree issued on 8th October 2020 in a land claim over a portion of LR Bukira/Bwisaboka/136. The four defendants, in person, sought setting aside of ex parte orders of 27th October 2020 (issued 30th October 2020) and a stay of execution pending an intended appeal to the Court of Appeal. The plaintiff, through counsel, sought amendment of the decree to read LR Bukira/Bwisaboka/852, on the ground that the original parcel had been closed by subdivision, plus a police security order to facilitate execution. Both sides filed written submissions. The court applied the triple conditions for stay under Order 42 Rule 6(2) - substantial loss, delay and security. Although the application was lodged roughly 100 days after judgment, the court accepted the defendants' explanation that they were unaware of the judgment until served with the orders of 30th October 2020, finding the delay plausible and satisfactory, and found they would likely suffer substantial loss as they depend on the suit land. The court set aside the orders of 27th October 2020 and granted a conditional stay: the defendants were to file their appeal within thirty days and deposit security of Kshs 20,000/= within thirty days, failing which the stay lapses automatically. The plaintiff's second application to amend the decree was disallowed. Costs of both applications were made to abide the intended appeal.

Key legal issues

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01

Whether the defendants' unexplained delay of approximately 100 days after judgment disentitled them to a stay of execution

Holding

The delay was explained: the applicants deponed that they were unaware of the judgment until served with the orders of 30th October 2020, so the delay was plausible and satisfactory

Reasoning

The court acknowledged that the application was filed about 100 days after judgment and that delay defeats equity and equity aids the vigilant, anchored on Article 10(2)(b) of the Constitution. However, on the grounds of the application it was disclosed that the applicants were not aware of the judgment until after the orders issued on 30th October 2020, and that explanation rendered the delay plausible and satisfactory.

p. 3
02

Whether the conditions for stay of execution pending intended appeal were met

Holding

Substantial loss was likely if execution proceeded since the applicants depend on the suit land, the delay was explained, and security was imposed by the court; stay was therefore granted conditionally

Reasoning

Applying Order 42 Rule 6(2), the court found the applicants, who depend on the suit land, likely to suffer substantial loss upon execution. The delay was satisfactorily explained. On security, following Doshi Iron Mongers, no party is exempt, so the court conditioned the stay on deposit of Kshs 20,000/= and filing of the intended appeal within 30 days, failing which the stay lapses automatically.

p. 2
03

Whether the decree should be amended to substitute LR Bukira/Bwisaboka/852 for the subdivided LR Bukira/Bwisaboka/136

Holding

The second application was disallowed because the first application was found grantable

Reasoning

The plaintiff sought amendment of the decree under section 99 of the Civil Procedure Act on the basis that the original suit parcel had been closed by subdivision, making execution impossible. The court recognized its power to correct apparent errors and the party's vested right to an effectual judgment, but since it had set aside the orders of 27th October 2020 and granted a stay, the amendment application had to fail in the circumstances.

p. 3

Legal principles established

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  • The triple conditions for stay of execution under Order 42 Rule 6(2) - substantial loss, delay and security - must all be satisfied before stay is granted
  • Delay in applying for stay must be explained to the satisfaction of the court, however short
  • There is no exemption from providing security for the due performance of a decree or order
  • The court has power under section 99 of the Civil Procedure Act to correct clerical or apparent errors in its judgment, ruling and orders

Court orders

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  1. 1.Orders 2 and 3 sought in the first application, namely setting aside the orders dated 27th October 2020 and issued on 30th October 2020, and stay of execution of the decree dated 8th October 2020, granted
  2. 2.The applicants to mount an appeal before the Court of Appeal within thirty (30) days from the date of the ruling
  3. 3.The applicants to deposit security of Kshs 20,000/= in court within thirty (30) days without further extension
  4. 4.Failure to comply with either condition, the stay of execution order to lapse automatically
  5. 5.The second application (amendment of decree and police security order) disallowed
  6. 6.The costs of the first and second applications to abide the intended appeal
Jurisdiction invoked
Inherent and corrective jurisdiction under sections 99 and 100 of the Civil Procedure Act (Cap 21) and Order 51 of the Civil Procedure Rules, 2010; Environment and Land Court Act, 2015 section 19(1)

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, "Samwel Nyabichere Muchemerson v Daniel Sereria Makara & 3 others [2021] KEELC 1878 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1878/eng@2021-09-28

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