Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment· [2021] KEELC 3932 (KLR)

Francis Makuba Mukanda v Felix Sakwa Mutswenje [2021] KEELC 3932 (KLR)

Environment and Land Court
24 March 2021
NMN.A. Matheka
1,854 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kakamega court refused to pause a 2019 land transfer ruling, allowing the Deputy Registrar to sign transfer documents for the landowner.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kakamega (N.A. Matheka, J) determined three applications arising from a judgment delivered on 28th February 2019, by which the defendant was awarded two acres to be hived off from land parcel E/Wanga/Malaha/1767. The plaintiff, Francis Makuba Mukanda, filed two applications for stay of execution of that judgment pending an intended appeal to the Court of Appeal in Kisumu - one dated 12th November 2020 and another dated 22nd February 2021, the latter seeking leave to appear in person and stay pending a request to appeal out of time. The defendant opposed the third application as duplicative, sub judice and an abuse of process, and separately applied by the application dated 9th November 2020 under Order 9 rules 9 & 10 and Sections 1A, 1B and 3A of the Civil Procedure Act for the firm of Balusi & Smart Advocates to come on record and for the Deputy Registrar to execute the mutation and transfer documents to implement the decree. The court set out the Order 42 rule 6 conditions for stay - substantial loss, application without unreasonable delay, and security - and the two-limb test of an arguable appeal and nugatory-ness drawn from Reliance Bank v Norlake Investments, Chris Munga N. Bichange, Mohamed Salim and Carter & Sons. It found the applicant had not fulfilled any of the grounds for stay and dismissed both stay applications with costs. Finding no stay in place, the court granted the execution application as prayed, enabling the Deputy Registrar to effect the subdivision and transfer. Delivered at Kakamega on 24th March 2021.

Key legal issues

#
01

Whether stay of execution pending appeal should be granted

Holding

Stay refused; the applicant did not satisfy any of the Order 42 rule 6 conditions nor the arguability and nugatory-ness limbs

Reasoning

The court applied the settled principles from Reliance Bank Ltd v Norlake Investments Ltd, Chris Munga N. Bichange v Richard Nyagaka Tongi, Mohamed Salim v Nasserpuria Memon Jamat and Carter & Sons Ltd v Deposit Protection Fund Board. It found the applicant failed to show substantial loss, promptness, security, an arguable appeal, or that refusal would render the appeal nugatory.

p. 3
02

Whether the judgment of 28th February 2019 should be executed through the Deputy Registrar

Holding

Granted, as there was no stay of the judgment in place

Reasoning

The plaintiff had refused to comply with the decree transferring two acres out of E/Wanga/Malaha/1767 to the defendant despite demand, and no stay order existed. The court found the only pragmatic means of implementation was to empower the Deputy Registrar to sign the necessary documents, and granted the application as prayed.

p. 3

Legal principles established

#
  • An applicant for stay of execution must demonstrate both that the appeal is arguable and that the appeal would be rendered nugatory if stay is not granted
  • The conditions for stay under Order 42 rule 6 are substantial loss, application without unreasonable delay, and security for due performance of the decree
  • The right of appeal must be balanced against the plaintiff's right to enjoy the fruits of the judgment

Court orders

#
  1. 1.The applications dated 12th November 2020 and 22nd February 2021 (for stay of execution) are dismissed with costs
  2. 2.The application dated 9th November 2020 (for execution of the judgment) is granted as prayed
  3. 3.The firm of Balusi & Smart Advocates deemed to have come on record for the defendant in place of J.J. Mukavale Advocates (implied by grant of the second application as prayed)
  4. 4.The Deputy Registrar to execute the relevant mutation forms, transfer form and all necessary documents on behalf of the plaintiff to hive off two acres from land parcel E/Wanga/Malaha/1767 and transfer it to the defendant (implied by grant as prayed)

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 50(2)(q)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 42 rule 6(1) and rule 6(2)
  • Civil Procedure Rules, 2010Order 9 rules 9 & 10
  • Court of Appeal RulesOrder 12

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange vs Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery Vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997, at Page 4
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 9 rules 9 & 10 of the Civil Procedure Rules, 2010; Article 50(2)(q) of the Constitution, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Makuba Mukanda v Felix Sakwa Mutswenje [2021] KEELC 3932 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3932/eng@2021-03-24

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