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ELCDismissedMurang'a E.L.C No. 102 of 2017· [2021] KEELC 2846 (KLR)

Samuel Karichu Kamau v Robert Macharia Mwangi [2021] KEELC 2846 (KLR)

Environment and Land Court
17 June 2021
JKJ.G. Kemei
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court refused to pause execution of a land judgment because the losing party waited over two years and proved no real harm.

What this practically means

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Executive summary

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The Plaintiff obtained judgment on 29/11/2018 in an adverse possession claim over parcel LOC 11/MARAGI/1365 in Murang'a E.L.C No. 102 of 2017. The Defendant filed a Notice of Appeal and later, through successive changes of advocates, brought an application dated 16/03/2021 seeking stay of execution of that judgment pending appeal to the Court of Appeal at Nyeri, or alternatively maintenance of the status quo. The application, premised on Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63E of the Civil Procedure Act and Article 159(2) of the Constitution, was unopposed. The court framed the sole issue as whether a prayer for stay of execution could be made. Applying Order 42 Rule 6(2), the court found the Applicant failed to establish substantial loss: his assertion that the court had authorised execution of transfer forms was unsupported by evidence, and execution is a lawful process which does not of itself constitute substantial loss, per James Wangalwa. The court held that the right of appeal must be balanced against the Respondent's right to enjoy the fruits of judgment, citing Mohammed Salim and Portreitz Maternity. The application, filed over two years and four months after judgment, was also made after unreasonable delay; counsel for the Applicant was present at delivery of judgment and sought no interim stay, and Covid-19 was not a plausible explanation. The court further noted that a party seeking discretion must come with clean hands, and the Applicant's conduct showed tainted hands. The remaining limbs on security were moot. The application was dismissed with no orders as to costs.

Key legal issues

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01

Substantial loss under Order 42 Rule 6(2)(a)

Holding

The Applicant failed to prove substantial loss; the allegation that the court had authorised execution of transfer forms was unsupported by evidence

Reasoning

The Applicant blamed the Covid-19 pandemic and illness for failure to follow up with former counsel but attached no evidence. Execution is a lawful process and the Respondent has a right to enjoy the fruits of the judgment, balancing the right of appeal.

p. 2
02

Unreasonable delay

Holding

The application filed on 17/03/2021, over two years and four months after judgment, was made after unreasonable delay with no plausible explanation

Reasoning

Judgment was delivered in the presence of the Applicant's counsel, who made no attempt to seek interim stay as is the practice. The delay, attributed to Covid-19, was unexplained and disentitled the Applicant to the court's discretion.

p. 2
03

Discretionary nature of stay and clean hands

Holding

Stay of execution is discretionary relief and the Applicant's conduct showed tainted hands, disentitling him to discretion

Reasoning

Citing Butt v Rent Restriction Tribunal, the court reiterated that stay is discretionary. The Applicant's failure to act timeously or seek interim stay pointed to conduct that did not endear the court's discretion.

p. 2

Legal principles established

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  • Execution is a lawful process and does not by itself amount to substantial loss; the applicant must show execution will irreparably affect the essential core of the appeal
  • The right of appeal must be balanced against the successful party's right to enjoy the fruits of the judgment
  • A party seeking discretionary relief must come to court with clean hands

Court orders

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  1. 1.The application dated 16/03/2021 seeking stay of execution of the judgment delivered on 29/11/2018 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3A and 63E
  • Constitution of KenyaArticle 159(2)

Cases cited (4)

  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    Bungoma Misc. App. No. 42 of 2011 [2012] eKLR
  • Mohammed Salim T/A Choice Butchery –Vs- Nasserpuria Memon Jamat
    (2013) eKLR
  • M/S Portreitz Maternity –Vs- James Karanga Kabia
    Civil Appeal No.3 of 1997
  • Butt vs. Rent Restriction Tribunal
    (1982) KLR 417
On appeal from
Environment and Land Court, Murang'a
Murang'a E.L.C No. 102 of 2017
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63E of the Civil Procedure Act; Article 159(2) of the Constitution

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, "Samuel Karichu Kamau v Robert Macharia Mwangi [2021] KEELC 2846 (KLR)", Case Analysis (2021). Murang'a E.L.C No. 102 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2846/eng@2021-06-17

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