Pauline Chemuge Sugwara v Nairuko Ene Mutarakwa Kiruti (Sued in her capacity as the Administrator of the Estate of Mutarakwa Kiruti Lepaso & 3 others [2021] KEELC 3576 (KLR)
The bottom line
#A Kajiado landowner won a court order pausing her eviction and barring interference with her land until her appeal is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution of the lower court decree should be granted pending appeal
Stay granted; the appellant established substantial loss, absence of unreasonable delay and offered security, and the appeal raised triable issues.
The court applied Order 42 Rule 6(2) and the guidance in Butt v Rent Restriction Tribunal. It noted the appellant was the registered owner of the suit lands, had occupied and developed them for 17 years, and had been served with a Notice of Eviction after judgment. A right of appeal is a constitutional right, and a right to fair hearing is guaranteed only if stay is granted, so the appellant, being the disadvantaged party, met the threshold.
Whether an injunction pending appeal should issue restraining interference with the suit lands
Temporary injunction granted; the appellant established a prima facie case, irreparable harm and balance of convenience in her favour.
Relying on Giella v Cassman Brown as applied in Bilha Mideva Bukulu, and considering the proceedings and Memorandum of Appeal, the court found a prima facie case established. The appellant had been on the suit lands, her injuries were not speculative within the Nguruman standards, and she stood to suffer irreparable harm; the balance of convenience tilted in her favour.
Legal principles established
#- Filing an appeal alone does not operate as a stay of execution; the applicant must satisfy Order 42 Rule 6(2) conditions of substantial loss, no unreasonable delay and security.
- The discretion to grant stay of execution should be exercised so as not to prevent an appeal or render it nugatory (Butt v Rent Restriction Tribunal).
Court orders
#- 1.A stay of execution of the Judgment and Decree in Chief Magistrates' Court at Ngong dated and delivered on 28th October, 2020 in Civil Suit CM ELC No. 74 of 2018, granted pending the hearing and determination of the appeal.
- 2.An order of temporary injunction restraining the Respondents, their agents, servants and or employees from interfering with the Appellant's occupation of land parcel numbers Kajiado/Kitengela/10624; 10625; 10630 and 10631 pending the hearing and determination of the Appeal.
- 3.Costs to be in the cause.
- On appeal from
- Chief Magistrates Court at Ngong
- CM ELC No. 74 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (appellate stay jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pauline Chemuge Sugwara v Nairuko Ene Mutarakwa Kiruti (Sued in her capacity as the Administrator of the Estate of Mutarakwa Kiruti Lepaso & 3 others [2021] KEELC 3576 (KLR)", Case Analysis (2021). CM ELC No. 74 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3576/eng@2021-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.