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ELCDismissedNot stated in the judgment (application dated 26th February 2020; related to Makueni HCSC No. 197 of 2017)· [2021] KEELC 3690 (KLR)

Julius Muthungu Mukanda v Mbulung’a Kituma [2021] KEELC 3690 (KLR)

Environment and Land Court of Kenya (implied from suit property dispute and Makueni station)
19 April 2021
1,511 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 land dispute court refused to pause a ruling because the applicant gave no real evidence he would suffer harm if execution proceeded.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Julius Muthungu Mukanda, moved the court by notice of motion dated 26th February 2020 under Order 42 Rule 6 of the Civil Procedure Rules, 2010 seeking stay of execution of the Ruling delivered by Mbogo J at Makueni on 28th January 2020, together with an order restraining the Defendant from dealing with or trespassing onto Land Title No. Ukia/Utaati/449 pending the hearing and determination of an intended appeal. The application was opposed by the Defendant, Mbulung'a Kituma, who contended that the application was brought after unexplained delay, that no substantial loss had been demonstrated, and that it was frivolous and an abuse of process. The court identified the three prerequisites under Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. Guided by the Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 and Kenya Shell Ltd v Kibiru [1986] KLR 416, the court held that although the one-month delay in filing was not unreasonable, the Applicant had failed to discharge the evidentiary burden of demonstrating substantial loss - there was no evidence of threatened execution, and the Applicant's own exhibit showed neither party could deal with the property pending determination of ownership. The Applicant had also offered only a bald statement of willingness to provide security. The court found no sufficient cause to stay execution and dismissed the application with costs to the Respondent on 19th April 2021.

Key legal issues

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01

Whether the Applicant satisfied the three conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

Holding

The application was made timeously (about one month), but the Applicant failed to demonstrate substantial loss and failed to demonstrate ability to provide security; there was therefore no sufficient cause to stay execution

Reasoning

The court accepted that the three prerequisites under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and security. Delay of about one month from the Ruling of 28th January 2020 to filing on 27th February 2020 was held to be in sufficient time. However, the Applicant merely repeated the phrase 'substantial loss' without evidencing threatened execution; indeed, Exhibit JMM1 showed neither party had liberty to deal with the suit property pending determination of ownership. On security, the Applicant offered only a bald statement of willingness. Guided by Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kibiru, the court found no sufficient cause and dismissed the application with costs.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution; without evidence of substantial loss, an appeal is rarely rendered nugatory
  • A party alleging substantial loss bears an evidentiary burden which mere repetition of the phrase cannot discharge

Court orders

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  1. 1.The application dated 26th February 2020 seeking stay of execution of the Ruling delivered on 28th January 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6 (and Rule 6(2))
  • Civil Procedure ActSections 1A, 1B, 3 and 3A

Cases cited (5)

  • James Wangalwa & Another -Vs- Agnes Naliaka Cheseto
    [2012] eKLR
  • Jaber Mohsen Ali & another -Vs- Priscillah Boit & Another
    [2014] eKLR
  • Kiplagat Kotut -Vs- Rose Jebor Kipngok & Another
    [2016] eKLR
  • Butt -Vs- Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd -Vs- Kibiru
    [1986] KLR 416
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (stay of execution pending intended appeal)

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, "Julius Muthungu Mukanda v Mbulung’a Kituma [2021] KEELC 3690 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 26th February 2020; related to Makueni HCSC No. 197 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3690/eng@2021-04-19

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