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ELCPartially AllowedMakueni ELC Appeal (ruling on application dated 28th April 2021, arising from Makindu SPMCC Civil Case No. 162 of 2014)· [2021] KEELC 2424 (KLR)

Sylvester Nthenge v Johnstone Kiamba Kiswili [2021] KEELC 2424 (KLR)

Environment and Land Court
29 July 2021
CMC. G. Mbogo
1,738 words in judgment
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The bottom line

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The Environment and Land Court at Makueni paused execution of a land judgment, but the appellant must deposit the full decretal costs of Kshs. 81,280/= within 45 days or face execution.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (Mbogo C.G., J) determined the Appellant/Applicant's notice of motion dated 28th April 2021, an exact replica of an earlier application dated 10th February 2021, seeking stay of execution of the judgment of Hon. J.O. Magori (SPM) delivered on 12th January 2021 in Makindu SPMCC Civil Case No. 162 of 2014, pending appeal. The Applicant, who had sold two acres out of plot number 120 Kai Settlement Scheme to the Respondent for Kshs. 100,000/= of which Kshs. 60,000/= was paid, invoked Order 42 Rule 6(2) of the Civil Procedure Rules and the Environment and Land Court Act, arguing substantial loss through threatened eviction and execution for costs of Kshs. 81,280/=, absence of delay, and willingness to deposit security. The Respondent opposed, contending he was in possession and developing the suit portion and that the appeal would not be rendered nugatory. Adopting the Court of Appeal's guidance in Butt v Rent Restriction Tribunal, the court found the substantial-loss limb unsatisfied but saw no overwhelming hindrance to granting stay, found the 30-day delay not inordinate, and rejected the offered Kshs. 60,000/= as security as inappropriate. Stay of execution was granted on condition that the Applicant deposits Kshs. 81,280/= in a joint interest-earning account of counsel within 45 days, failing which the Respondent may execute. Costs were to be in the cause.

Key legal issues

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01

Substantial loss

Holding

The court was not satisfied the Applicant had demonstrated substantial loss, but granted stay nonetheless because no overwhelming hindrance barred it.

Reasoning

The court noted the uncontested sale of two acres for Kshs. 100,000/= with Kshs. 60,000/= paid, and that the Respondent was in possession and developing the land. Although the Applicant claimed risk of eviction and alienation, the court found the substantial-loss limb unproven, but applied the Butt principle that where no overwhelming hindrance exists a stay should issue so the appeal is not rendered nugatory.

p. 3
02

Unreasonable delay

Holding

A 30-day span between judgment and application was not inordinate.

Reasoning

Judgment was delivered on 12th January 2021 and the application filed on 11th February 2021. The court held that a span of 30 days did not amount to inordinate delay, satisfying the second condition of Order 42 Rule 6(2).

p. 3
03

Security for due performance of the decree

Holding

Security fixed at Kshs. 81,280/= (the decretal costs), not the Kshs. 60,000/= offered, to be deposited in a joint interest-earning account of counsel within 45 days, failing which execution may issue.

Reasoning

The court found the Applicant's offer of Kshs. 60,000/= inappropriate as it would seem to pre-judge the appeal. Noting the Applicant's willingness to abide by conditions, the court exercised its discretion to fix security at the decretal amount of Kshs. 81,280/= and imposed a 45-day deposit period with default triggering liberty to execute.

p. 3

Legal principles established

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  • The power to grant or refuse stay of execution is discretionary and should be exercised so as not to prevent an appeal; a stay should be granted where no overwhelming hindrance exists so the appeal is not rendered nugatory.
  • The conditions for stay under Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 12th January 2021 in Makindu SPMCC Civil Case No. 162 of 2014 and the decree and all consequential orders granted, pending the hearing and determination of the appeal
  2. 2.Appellant to deposit Kshs. 81,280/= into an interest-earning account in the joint names of the Advocates on record for the parties within 45 days, in default of which the Respondent may execute

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure Rules, 2010Order 42 Rules 6(2), 6(3); Order 51 Rule 1
  • Environment and Land Court ActSections 3, 13(1,2,3,4,7), 19, 24

Cases cited (3)

  • Charles Kariuki Njuri -Vs- Francis Kimaru Rwara (Suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased)
    [2020] eKLR
  • Patrick Kithaka Borici & Another -Vs- Shadrack Nyaga Njeru
    [2019] eKLR
  • Butt -Vs- Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Senior Principal Magistrate's Court, Makindu
SPMCC Civil Case No. 162 of 2014
Jurisdiction invoked
Sections 3, 13(1,2,3,4,7), 19 and 24 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A, 63(e) Civil Procedure Act; Order 42 Rules 6(2),(3) and Order 51 Rule 1 Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sylvester Nthenge v Johnstone Kiamba Kiswili [2021] KEELC 2424 (KLR)", Case Analysis (2021). Makueni ELC Appeal (ruling on application dated 28th April 2021, arising from Makindu SPMCC Civil Case No. 162 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2424/eng@2021-07-29

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