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ELCPartially Allowed· [2021] KEELC 3677 (KLR)

Bernard Musyoka Kinyanzwii v Alice Wanza Nzioka (Being the legal representative of Aaron Kyulu Nzioka) [2021] KEELC 3677 (KLR)

Environment and Land Court
19 April 2021
2,210 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan landowner won an eviction order after the occupant failed to prove she would suffer substantial loss to delay execution of judgment.

What this practically means

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Executive summary

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Two applications came before the Environment and Land Court at Makueni: a Notice of Motion by the Defendant, Alice Wanza Nzyoka, dated 1st August 2019 seeking a stay of execution of the summary judgment of 28th May 2019 pending an intended appeal, and an application by the Plaintiff, Bernard Musyoka Kinyanzwii, dated 15th November 2019 seeking an eviction order against the Defendant from the suit property, LR. No. Makueni/Iuani/1020, enforced by a licensed auctioneer or court bailiff with security from the OCS Makueni. On the stay application, the court identified the Order 42 Rule 6(2) prerequisites: substantial loss, absence of unreasonable delay, and security. The ten-week interval from judgment to application was held not unreasonable, but the Defendant failed to demonstrate substantial loss in clear terms, merely repeating the assertion without discharging the evidentiary burden, and showed no willingness to provide security. Applying Butt v Rent Restriction Tribunal and Kenya Shell v Kibiru, the court found no sufficient cause to inhibit the Plaintiff's enjoyment of the fruits of his judgment and dismissed the application with costs. On the eviction application, the court noted that although it was premised on the wrong provision (Order 41 Rule 1, dealing with receivers), Order 22 Rule 29(1) was the appropriate basis for executing a decree for delivery of immovable property. Following Josphat Kuria Gathoni, the court granted prayers 2 and 3, issuing the eviction order and the security order, but allowed the Defendant thirty days to voluntarily vacate, with costs in the cause. Judgment delivered at Makueni via email on 19th April 2021 by Mbogo C.G., Judge.

Key legal issues

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01

Whether the Defendant satisfied the conditions for stay of execution pending appeal

Holding

The application for stay failed because the Defendant did not demonstrate substantial loss, made no offer of security, and was found to be acting in bad faith; delay of ten weeks was not found unreasonable.

Reasoning

The court applied Order 42 Rule 6(2) and Butt v Rent Restriction Tribunal. While the ten-week interval from judgment to application was not unreasonable, the Applicant merely repeated the assertion of substantial loss without discharging the evidentiary burden, citing Kenya Shell v Kibiru. She also expressed no willingness to furnish security, leading the court to find bad faith and no sufficient cause to inhibit the Plaintiff's enjoyment of the judgment.

p. 3
02

Whether the Plaintiff, whose decree followed a judgment not specifically seeking eviction, could obtain eviction orders in execution proceedings

Holding

Yes - the court granted prayers 2 and 3 of the Plaintiff's application, allowing the decree for possession of immovable property to be executed by eviction, with 30 days for voluntary exit.

Reasoning

The court noted eviction was not sought in the plaint, so the Plaintiff sought to enforce the judgment through the present application. Though the application cited Order 41 Rule 1 (receivers), which the court found extraneous, Order 22 Rule 29(1) was identified as the appropriate provision for execution of a decree for immovable property. Relying on Munyao J in Josphat Kuria Gathoni, the court held a title holder entitled to eviction where defendants demonstrate no right over the land.

p. 3

Legal principles established

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  • The prerequisites for stay of execution pending appeal under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and security for due performance of the decree
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay and must be demonstrated by evidence
  • Where a decree is for delivery of immovable property, possession shall be delivered to the party to whom it has been adjudged, if necessary by removing any person bound by the decree who refuses to vacate
  • Under Section 24(a) of the Land Registration Act, 2012, all rights and privileges appurtenant to registration as proprietor of land vest in that person absolutely

Court orders

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  1. 1.The Defendant's application dated 1st August 2019 for stay of execution is dismissed with costs to the Plaintiff/Respondent
  2. 2.Prayers 2 and 3 of the Plaintiff's application dated 15th November 2019 are granted - an eviction order to issue against the Defendant and the OCS Makueni Police Station or any other OCS under whose jurisdiction the land falls to give security
  3. 3.The Defendant is granted a temporary reprieve of thirty (30) days to voluntarily exit the suit property
  4. 4.Costs of the Plaintiff's application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 41 Rules 1, 2 & 4
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 22 Rule 29(1)
  • Civil Procedure ActSections 3A and 63(a)
  • Land Registration ActSection 24(a)

Cases cited (6)

  • Beatrice Ndunguri Mwai & another -Vs- Sicily Wawira Titus & another
    [2020] eKLR
  • Jaber Mohsen Ali & another -Vs- Priscillah Boit & Another
    [2014] eKLR
  • Kiplagat Kotut -Vs- Rose Jebor Kipngok
    [2015] eKLR
  • Butt -Vs- Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd -Vs- Kibiru
    [1986] KLR 416
  • Josphat Kuria Gathoni -Vs- James Maina Njoroge & 3 others
    [2019] eKLR
Jurisdiction invoked
Sections 3A and 63(a) of the Civil Procedure Act; Order 22 Rule 25, Order 41 Rules 1, 2 & 4 and Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

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, "Bernard Musyoka Kinyanzwii v Alice Wanza Nzioka (Being the legal representative of Aaron Kyulu Nzioka) [2021] KEELC 3677 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3677/eng@2021-04-19

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