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ELCDismissedNot stated (Notice of Motion dated 23rd October 2020)· [2021] KEELC 3380 (KLR)

Pamela Monyangi Bitange & 2 others v David Kasyaku & 4 others [2021] KEELC 3380 (KLR)

Environment and Land Court
4 May 2021
COCHRISTINE OCHIENG
1,980 words in judgment
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The bottom line

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The Kajiado Environment and Land Court refused to pause a land judgment because the plaintiffs could not show execution would actually harm them.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (Christine Ochieng, J) determined the Plaintiffs' Notice of Motion dated 23rd October 2020 seeking a stay of execution of the court's judgment and decree of 29th September 2020, by which the Plaintiffs' suit had been dismissed, pending an intended appeal. The application, supported by the affidavit of the 2nd Plaintiff, Pamela Monyangi Bitange, was premised on Order 42 Rule 6 of the Civil Procedure Rules. The Plaintiffs argued the appeal would be rendered nugatory and they would suffer substantial loss if 21 acres were hived off their land. The Defendants opposed via Grounds of Opposition, contending there was inordinate delay, no demonstration of substantial loss (execution had not commenced), no memorandum of appeal annexed, and no offer of security. The court framed a single issue: whether stay of execution should be granted pending the intended appeal. Reviewing Order 42 Rule 6 and authorities including Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court noted that the suit land remained registered in the Plaintiffs' names, the Defendants had not begun execution, and the Plaintiffs' claim of irreparable harm was asserted but not demonstrated. The Plaintiffs had also filed the application only as the earlier 30-day stay lapsed. Holding the Plaintiffs had failed to meet the Order 42 Rule 6(2) threshold, the court dismissed the application with costs.

Key legal issues

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01

Whether the Plaintiffs satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

They did not; substantial loss was not demonstrated despite the suit land remaining registered in their names

Reasoning

The court noted the Plaintiffs filed a Notice of Appeal and proceedings were ready, but the suit land remained registered in their names and the Defendants had not commenced execution. Mere assertion of irreparable harm without demonstration does not constitute substantial loss. The prior 30-day stay had lapsed before the application was filed. The authority relied on by the Plaintiffs was persuasive only, and the threshold under Order 42 Rule 6(2) was not met.

p. 3

Legal principles established

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  • The fact that execution has been put in motion or is likely to be put in motion does not by itself amount to substantial loss under Order 42 Rule 6
  • Substantial loss is the cornerstone of a stay application; the applicant must show execution would irreparably affect the essential core of the appeal

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 23rd October 2020 is dismissed
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 22 Rule 22; Order 42 Rule 6; Order 51 Rule 1 & 3
  • Appellate Jurisdiction ActRule 5(b)

Cases cited (6)

  • In the estate of Nasokotoni Ole Sane Alias Nasotokin Lesane, Kajiado High Court Succession Cause No. 48 of 2017
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR (ELC Misc Application No. 42 of 2012)
    [2012] eKLR
  • Kenya Shell Ltd Vs Kibiri & Another (1986) KLR
    (1986) KLR
  • Paul Kamura V John Peter Nganga (2019) eKLR
    (2019) eKLR
  • Butt v Rent Restriction Tribunal [1982] KLR 417
    [1982] KLR 417
  • Multimedia University & Another –Vs- Professor Gitile N. Naituli (2014) eKLR
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 22 Rule 22; Order 42 Rule 6 and Order 51 Rule 1 & 3 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, "Pamela Monyangi Bitange & 2 others v David Kasyaku & 4 others [2021] KEELC 3380 (KLR)", Case Analysis (2021). Not stated (Notice of Motion dated 23rd October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3380/eng@2021-05-04

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