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ELCDismissedNot stated (Notice of Motion dated 30th June, 2020)· [2021] KEELC 3934 (KLR)

Ntisho Mayiamei & another v Ntipapa Tuta Sencha & 4 others [2021] KEELC 3934 (KLR)

Environment and Land Court
18 March 2021
COChristine Ochieng
1,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court refused to pause the execution of a land judgment because the losing party couldn't show they'd suffer real harm if it took effect.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Kajiado on the Appellants' Notice of Motion dated 30th June, 2020 seeking stay of execution of a judgment delivered on 7th May, 2020 pending appeal, brought under sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Appellants, through the supporting affidavits of Ntisho Mayamei and Parmito M. Polong, argued the appeal had high chances of success, that they would suffer substantial loss, and offered security. The Respondents, through the 1st Respondent Ntipapa Tuta Sencha, opposed, relying on a consent recorded before the Kajiado Land Dispute Tribunal requiring the Appellants to return land parcels Kajiado/Dalalekutuk/947 and 948, which was adopted as a court order and decree never appealed from; they termed the application an abuse of process. The court framed a single issue: whether stay of execution should issue. Applying Order 42 Rule 6(2) and the principles in Butt v Rent Restriction Tribunal [1982] KLR 417, the court held that although the application was made without unreasonable delay, the Appellants failed to demonstrate substantial loss. Noting the Respondents resided on the land while the Appellants held title, and that a valid decree remained unimplemented, the court declined the stay and dismissed the motion as unmerited. No costs order appears in the ruling.

Key legal issues

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01

Whether the Appellants met the threshold for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application failed because, though made without unreasonable delay, the Appellants did not demonstrate substantial loss

Reasoning

The court applied Order 42 Rule 6(2) and the guidance in Butt v Rent Restriction Tribunal. While accepting the application was filed timeously, the court found the supporting affidavits did not demonstrate the substantial loss that would result if stay was refused. The Respondents reside on the land but the Appellants hold title; an unimplemented decree from the adopted Tribunal award remained in force and had not been appealed from.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree
  • Stay of execution is a discretionary power to be exercised so as not to render an appeal nugatory

Court orders

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  1. 1.The Appellants' Notice of Motion dated 30th June, 2020 is dismissed as unmerited

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 79G
  • Civil Procedure RulesOrder 42 Rule 6(2); Order 22; Section 28

Cases cited (2)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Aman Hauliers Ltd V Abdulnasir Abukar Hassan
    (2017) eKLR
On appeal from
Kajiado Magistrates Court
Case No. 442 of 2014 (judgment delivered 7th May 2020)
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 42 Rule 6 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, "Ntisho Mayiamei & another v Ntipapa Tuta Sencha & 4 others [2021] KEELC 3934 (KLR)", Case Analysis (2021). Not stated (Notice of Motion dated 30th June, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3934/eng@2021-03-18

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