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ELCPartially Allowed· [2021] KEELC 2566 (KLR)

John Barasa Matifari v Simon Wanjala Mabonga Substituted with Amos Wandabwa Mabonga [2021] KEELC 2566 (KLR)

Environment and Land Court
15 July 2021
2,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Bungoma court paused the handover of disputed land until an appeal is heard, on condition the losing party safeguards the winner's interests.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Bungoma (Boaz N. Olao J) determines the defendant's Notice of Motion dated 1st March 2021 seeking a stay of execution of the court's judgment of 28th January 2021, which had declared the plaintiff entitled to the suit land, East Bukusu/South Nalondo/2862, by adverse possession and ordered its transfer. The defendant filed a Notice of Appeal one day after judgment and applied for stay, contending the appeal was arguable, proceedings were not ready, the plaintiff threatened to sell the land to third parties, and the appeal would be rendered nugatory. The plaintiff opposed, arguing the application did not meet the Order 42 Rule 6 threshold, no memorandum of appeal was shown, there was laches, no substantial loss, and the transfer was nearly complete. The court identified four conditions from Order 42 Rule 6: sufficient cause, substantial loss, no unreasonable delay, and security. Relying on Kenya Shell v Kibiru, Machira v East African Standard, Vishram Ravji Halai v Thornton & Turpin, and James Wang'alwa v Alnes Naliaka Cheseto, the court found the one-month delay not unreasonable, found substantial loss in the unrebutted threat of sale to third parties, and accepted the defendant's offer of security. The court allowed the application, staying execution on condition that the defendant deposit the title deed with executed transfer documents with the Deputy Registrar within 7 days, failing which the stay lapses. There were no orders as to costs.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The delay of one month was not unreasonable, given the Notice of Appeal was filed one day after judgment and the plaintiff himself was not in a hurry to execute.

Reasoning

The court applied Order 42 Rule 6(2), holding that whether delay is unreasonable depends on the circumstances of each case. The Notice of Appeal was filed one day after judgment and the application one month later. The court also noted that six months after judgment the plaintiff had not forwarded documents to the Deputy Registrar for execution, showing he was not in a hurry, and so the delay was excused.

p. 3
02

Whether the defendant demonstrated substantial loss

Holding

Yes - the threat to sell the suit land to third parties, if unrebutted, would constitute substantial loss as the land may be beyond the defendant's reach if the appeal prevails.

Reasoning

The defendant averred that the plaintiff threatened to sell the suit property to third parties. Although no proof was provided, the plaintiff did not rebut the averment. If the land is sold to third parties while the appeal is pending, it may be beyond the defendant's reach if the appeal succeeds, and he may be forced to mount other litigation, which constitutes substantial loss entitling him to a stay.

p. 3
03

Security for due performance of the decree

Holding

Security was imposed by requiring the defendant to deposit the title deed with duly executed transfer documents with the Deputy Registrar within 7 days, failing which the stay lapses.

Reasoning

The defendant offered to furnish security. The court balanced the parties' positions: the plaintiff is in occupation and would only suffer the prejudice of waiting longer for title. The court crafted security requiring the defendant to deposit the title deed with executed transfer documents with the Deputy Registrar, to be released to the prevailing party on appeal, failing which the stay lapses.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate sufficient cause, substantial loss, absence of unreasonable delay, and offer security
  • Substantial loss may arise where the suit land may be sold to third parties, rendering the appeal nugatory

Court orders

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  1. 1.There shall be a stay of execution of this Court's Judgment dated 28th January 2021 and all subsequent orders following therefrom
  2. 2.The defendant shall within 7 days of the delivery of this ruling deposit with the Deputy Registrar of this Court the title deed to the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 with transfer documents duly executed, to be released to the party that prevails on the appeal
  3. 3.In default, the stay of execution shall lapse and execution may proceed
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XLI rule 4

Cases cited (4)

  • KENYA SHELL LTD .V. BENJAMIN KIBIRU
    1986 KLR 410
  • MACHIRA t/a MACHIRA & CO ADVOCATES .V. EAST AFRICAN STANDARD (NO 2)
    2002 KLR 63
  • VISHRAM RAVJI HALAI & ANOTHER .V. THORNTON & TURPIN 1963 LTD
    CA CIVIL APPEAL No 15 of 1990 [1990 KLR 365]
  • JAMES WANG'ALWA & ANOTHER .V. ALNES NALIAKA CHESETO
    2012 eKLR
Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "John Barasa Matifari v Simon Wanjala Mabonga Substituted with Amos Wandabwa Mabonga [2021] KEELC 2566 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2566/eng@2021-07-15

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