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ELCDismissedELC Appeal No. 25 of 2020 (Busia) - Notice of Motion dated 3rd November 2020, arising from Ukwala SRM ELC No. 25 of 2020· [2021] KEELC 2851 (KLR)

Zebio Kweyu v Benard Peter Oyayo Otieno [2021] KEELC 2851 (KLR)

Environment and Land Court
10 June 2021
AOA. Omollo
1,229 words in judgment
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The bottom line

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A Kenyan court refused to pause execution of a judgment because the applicant failed to prove, with specific facts, the substantial loss he claimed he would suffer.

What this practically means

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Executive summary

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This was a notice of motion dated 3rd November 2020 brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, seeking stay of execution of a ruling and order issued by the SRM's Court at Ukwala on 21st October 2020 pending an intended appeal. The Applicant claimed he had verbally leased the suit land, Uhoro/Tingale/1886, for 54 months from 2017 to grow sugarcane, and that the Respondent, who bought the land in 2018, would clear the cane, rendering the appeal nugatory. The Respondent opposed, denying any proven lease, asserting the Applicant was a trespasser who encroached in January 2019, and contending there was no loss in harvesting mature sugarcane and that the memo of appeal was filed out of time. The Applicant cited Teresia Wairimu v Wanjiku Mwangi and Paul Kamura Kirunge v John Peter Nganga; the Respondent relied on Machira v East African Standard and Dilpack Kenya Ltd v William Muthama Kitonyi. The court noted it was undisputed that the Applicant was in possession and had sugarcane on the land, which the subordinate court allowed him 14 days to harvest. However, the affidavit did not plead the lease commencement date or the age of the cane, evidence the court held was necessary to establish substantial loss. The court declined to grant the stay, dismissed the application for want of merit, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to justify stay of execution pending appeal

Holding

The application was dismissed because the Applicant did not demonstrate substantial loss

Reasoning

Although possession and the presence of sugarcane were undisputed, and an appeal existed on record, the Applicant's affidavit failed to plead the commencement date of the alleged 54-month verbal lease or the age of the cane at the time of the impugned order. This evidence was necessary to establish the substantial loss required under Order 42. The validity of the appeal was immaterial at that stage, but without proof of substantial loss, stay could not issue.

p. 2

Legal principles established

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  • An applicant for stay of execution must demonstrate the substantial loss he will suffer; mere possession and presence of crops without proof of lease commencement date and crop age is insufficient

Court orders

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  1. 1.Application for stay of execution dismissed for want of merit
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42

Cases cited (4)

  • Teresia Wairimu Vs Wanjiku Mwangi
    (2018) eKLR
  • Paul Kamura Kirunge Vs John Peter Nganga
    (2019) eKLR
  • Machira T/A Machira & Co. Advocates Vs East African Standard (No. 2)
    (2002) KLR 3
  • Dilpack Kenya Ltd Vs William Muthama Kitonyi
    (2018) eKLR
On appeal from
Senior Resident Magistrate's Court at Ukwala
ELC No. 25 of 2020
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 42 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, "Zebio Kweyu v Benard Peter Oyayo Otieno [2021] KEELC 2851 (KLR)", Case Analysis (2021). ELC Appeal No. 25 of 2020 (Busia) - Notice of Motion dated 3rd November 2020, arising from Ukwala SRM ELC No. 25 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2851/eng@2021-06-10

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