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ELCDismissedNot stated in the judgment· [2021] KEELC 2160 (KLR)

Joseph Kisilu Nzau v David Maithya Munyasya & another [2021] KEELC 2160 (KLR)

Environment and Land Court
2 September 2021
1,289 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

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A Kenyan land court refused to pause a judgment because the applicants showed no real loss and hadn't even filed their appeal papers.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni (Mbogo C.G., J) on a notice of motion dated 16th July 2020 in which the Applicants (the defendants in the suit) sought stay of execution of the judgment dated 28th May 2020 pending an intended appeal to the Court of Appeal, invoking Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules. The Applicants, through the affidavit of David Maithya Munyasya, argued they had an arguable appeal, that the earlier stay had lapsed, and that they would be evicted from land used for grazing and subsistence farming, destroying mature trees. They blamed delay in filing the substantive appeal on non-supply of certified proceedings and cited the Covid-19 pandemic. The Respondent (the successful Plaintiff, in possession of the land for over 55 years) opposed, contending no substantial loss was shown and that stay would deny him his source of livelihood pending an appeal not yet filed. The court identified the classic trinity of conditions: substantial loss, reasonable delay, and security. It found the two-month delay not inordinate and the Applicants willing to abide by conditions, but held that substantial loss was not demonstrated: the decree required only excision of 1 Ha from a 4.8 Ha parcel, leaving a substantial balance, and no memorandum of appeal was exhibited. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Applicants would suffer substantial loss if stay is denied

Holding

No substantial loss established; the decree only requires excision of 1 Ha from a 4.8 Ha parcel, leaving a substantial balance.

Reasoning

The court found as a fact that the suit land would only be partially excised, not transferred wholesale, so the Applicants' claim of eviction and loss of subsistence was incorrect. The remaining balance would still support grazing and subsistence farming. Absent a memorandum of appeal, the court could not assess any arguable case on appeal, so the nugatory-appeal threshold was not met.

p. 2
02

Whether the application was filed without unreasonable delay and with security

Holding

Yes - filing within two months of judgment was not inordinate, and the Applicants undertook to abide by conditions on security.

Reasoning

The court accepted that the two-month delay was not unreasonable, noting also the Covid-19 pandemic context raised in submissions. The Applicants' undertaking to abide by court-imposed conditions satisfied the security element. However, since substantial loss was not established, satisfaction of the other two conditions could not save the application.

p. 2

Legal principles established

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  • The conditions for granting stay pending appeal are substantial loss, absence of unreasonable delay, and furnishing of security for due performance of the decree.
  • An applicant for stay must demonstrate substantial loss; mere assertions of eviction will not suffice where the decree only excises a portion of the land and no memorandum of appeal is exhibited.

Court orders

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  1. 1.The application dated 16th July 2020 for stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 22 Rule 22

Cases cited (4)

  • Florence Hare Mkaha -Vs- Pwani Tawakal Mini Coach & Anor
    (2014) eKLR
  • David Oyiare Ntugani -Vs- Matuiya Ole Naisuaku Orket
    (2017) eKLR
  • James Wangalwa & Anor -Vs- Agnes Naliaka Cheseto
    (2012) eKLR
  • Victory Construction -Vs- BM (A Minor suing through next friend and one PMM)
    (2019) eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules

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, "Joseph Kisilu Nzau v David Maithya Munyasya & another [2021] KEELC 2160 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2160/eng@2021-09-02

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