Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMERU ELC NO. 90 OF 2008· [2021] KEELC 1985 (KLR)

Winfred Maigene Stephen v Kinyua M’mbijiwe (being the legal representative of the estate of Gilbert Kabeere M’mbijiwe) [2021] KEELC 1985 (KLR)

Environment and Land Court
22 September 2021
LMLUCY N. MBUGUA
1,259 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause a land judgment, ruling that occupying land through trespass is not 'substantial loss' unless you prove exactly what you will lose.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Meru on the plaintiff's Notice of Motion dated 24th November 2020 seeking stay of execution of the judgment and decree delivered on 18th November 2020 in Meru ELC No. 90 of 2008 pending the hearing and determination of her intended appeal. The plaintiff argued that she had filed a notice of appeal, applied for typed proceedings, and had substantially developed the suit property by constructing shops leased to third parties, contending that she would suffer substantial and irrecoverable loss and that the appeal would be rendered nugatory if stay was not granted. She submitted that her right of appeal and fair administrative action would be violated, relying on Silvertein v Chesoni, Northwood Service Ltd and RWW v EKW, and urged the court to grant stay without security. The respondent opposed the application, asserting the plaintiff would suffer no substantial loss, that he was entitled to the land only to the extent of its measurement, and that the plaintiff ought to deposit security, proposing Kshs. 3 million. The defendant relied on P.C.E.A v County Council of Meru and Mbogori Baichu v David Gitonga Mungania, arguing the plaintiff had not ventilated substantial loss and had not offered security. Applying Order 42 Rule 6 of the Civil Procedure Rules, the court found the application filed without delay, but held that the applicant had not established substantial loss, noting her structures had been demolished in 2003 and that continued trespass cannot ground substantial loss, citing Samvir Trustee Limited v Guardian Bank Limited. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Whether the application for stay of execution met the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The application failed because substantial loss was not established and security was not offered, although it was filed without delay

Reasoning

The court recited the twin conditions under Order 42 Rule 6(2): substantial loss, filing without unreasonable delay, and furnishing security. It found the application was filed without delay. However, the applicant's own pleadings and testimony showed her structures on the suit land were demolished in 2003, so she could not demonstrate what substantial loss would ensue if the decree were executed. The court declined to sanction continued trespass and dismissed the application with costs.

p. 2

Legal principles established

#
  • Occupation of land found to be illegal (trespass) does not by itself constitute substantial loss for purposes of an application for stay of execution; the applicant must establish the specific loss to be suffered

Court orders

#
  1. 1.The Notice of Motion dated 24.11.2020 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 21 Rule 1

Cases cited (6)

  • Silvertein V Chesoni
    (2002)1 KLR 867
  • Northwood Service Ltd V Mac & More Solution Ltd
    [2015] eKLR
  • RWW V EKW
    [2019] eKLR
  • P.C.E.A Thro' The Registered Trustees V County Council Of Meru & 2 Others
    [2021] eKLR
  • Mbogori Baichu V David Gitonga Mungania
    [2021] eKLR
  • Samvir Trustee Limited vs. Guardian Bank Limited
    (2007) eKLR
On appeal from
High Court
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Winfred Maigene Stephen v Kinyua M’mbijiwe (being the legal representative of the estate of Gilbert Kabeere M’mbijiwe) [2021] KEELC 1985 (KLR)", Case Analysis (2021). MERU ELC NO. 90 OF 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1985/eng@2021-09-22

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