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ELCPartially AllowedNot stated in extract (Civil Appeal No. 116 of 2020 pending before the Court of Appeal at Kisumu referenced)· [2021] KEELC 4190 (KLR)

Samson Marigo Makubo v Joseph Mwita Ragita & 4 others [2021] KEELC 4190 (KLR)

Environment and Land Court
24 February 2021
1,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court paused enforcement of its own orders, but only because the applicant promised to deposit Kshs. 80,000 in court within thirty days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a Notice of Motion dated 24th August 2020 by the plaintiff, Samson Maringo Makubo, acting in person, seeking stay of execution of the court's orders of 15th January 2020 and of the Bill of Costs dated 22nd July 2020 pending his intended appeal to the Court of Appeal. The application was mounted under Order 51 and Order 12 Rule 7 of the Civil Procedure Rules, 2010, sections 1A and 1B of the Civil Procedure Act and section 3 of the Environment and Land Court Act, 2015, with Order 42 Rule 6(2) supplying the substantive conditions. The defendants, represented by Oguttu Mboya, Ochwal and partner, Advocates, opposed the application, contending that no substantial loss had been demonstrated and relying on negative-order authorities including the Muema decision. The court framed three issues: whether the Order 42 Rule 6 conditions were met, whether the decree was a negative order incapable of stay, and whether the orders were merited. It found the delay of about seven months not inordinate in light of the COVID-19 pandemic, distinguished the negative-order authorities on their facts, held that a successful appeal would be rendered nugatory without stay, and directed security in the sum of Kshs. 80,000 within thirty days, in default of which the stay would lapse. The application was allowed; costs were ordered to abide the outcome of Civil Appeal No. 116 of 2020 before the Court of Appeal at Kisumu.

Key legal issues

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01

Substantial loss and delay under Order 42 Rule 6(2)

Holding

The applicant established substantial loss and that the seven-month delay was not inordinate given the COVID-19 pandemic and the circumstances

Reasoning

The court noted the appeal had been deemed duly filed and was pending before the Court of Appeal. Delay is assessed on the facts of each case per Chemwolo, and the pandemic's disruption of court operations from March 2020 explained the timeline. Allowing taxation to proceed would cause the applicant great financial detriment and render a successful appeal nugatory.

p. 3
02

Negative order incapable of stay

Holding

Authorities on negative orders were distinguishable on the facts; the decree posed a real risk of rendering the appeal nugatory

Reasoning

The defendants relied on Muema and related authorities holding that dismissal orders are negative and not capable of stay. The court held those cases were decided on their own facts and that the filed appeal would be rendered nugatory if stay were refused, citing Silverstein, and invoked the court's power to preserve the subject matter of an appeal.

p. 3
03

Security for due performance

Holding

Security was required and fixed at Kshs. 80,000 within thirty days, default lapsing the stay

Reasoning

No person is exempt from providing security for due performance of a decree as the statute requires. The type and quantum of security lie in the court's discretion based on the circumstances, following Gichine. The court therefore conditioned the stay on a deposit of Kshs. 80,000 within thirty days.

p. 3

Legal principles established

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  • A party seeking stay of execution must satisfy the cumulative conditions of substantial loss, no unreasonable delay and provision of security under Order 42 Rule 6(2)
  • Delay in filing a stay application is judged against the facts and surrounding circumstances of each case
  • The court has discretion as to the kind of security to be provided for due performance of a decree
  • The court has authority to issue orders for interim preservation of the subject matter of an appeal

Court orders

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  1. 1.Stay of execution of the orders issued on 15th January 2020 and the Bill of Costs dated 22nd July 2020 pending determination of the intended appeal (Order 3 of the application granted)
  2. 2.Costs of the application to abide the outcome of Civil Appeal No. 116 of 2020 pending before the Court of Appeal at Kisumu
  3. 3.Applicant to deposit security of Kshs. 80,000 in court within thirty days, failing which the stay lapses automatically

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B
  • Civil Procedure Rules, 2010Order 51 Rule 16; Order 42 Rule 6(2); Order 42 Rule 44; Order 50 Rules 4 and 8; Order 12 Rule 7
  • Environment and Land Court Actsection 3
  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 79G

Cases cited (13)

  • James Wangalwa and another =vs= Agnes Naliaka Cheseto
    (2012) eKLR
  • Commissioner of Customs =vs= Anil Doshi
    (2007) eKLR
  • Butt =vs= Rent Restriction Tribunal
    (1979)
  • Electro Watts Limited =vs= Alios Finance Kenya limited
    (2018) eKLR
  • DR. G.N. Muema P/A MT. View Maternity and Nursing Home =vs= Miriam Maalim Bishar and another
    Voi High Court Civil Application No. 20 of 2016
  • Ndegwa Gichine =vs= Sicily Warware Njira
    (2018) eKLR
  • Tom Ojienda and Associates=vs= Mumias Sugar Company Limited and another
    (2018) eKLR
  • NSSF =vs= Central Bank of Kenya & 2 others
    (2015) eKLR
  • Blue Shield Company Ltd =vs= Mahinda
    (2009) KLR 551
  • David Morton Silverstein =vs= Atsango Chesoni
    (2002)1KLR 867
  • Philip Chemwolo and Another =vs= Augustine Kubende
    (1982-88) KAR 103
  • Doshi Iron Mongers Ltd =vs= Kenya Revenue Authority and another
    (2020) EKLR
  • Board of Governors Moi High School Kabarak and another =vs= Malcolm Bell
    (2013) eKLR
Jurisdiction invoked
Order 51 of the Civil Procedure Rules, 2010 as read with sections 1A and 1B of the Civil Procedure Act (Cap 21) and Order 12 Rule 7; section 3 of the Environment and Land Court Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samson Marigo Makubo v Joseph Mwita Ragita & 4 others [2021] KEELC 4190 (KLR)", Case Analysis (2021). Not stated in extract (Civil Appeal No. 116 of 2020 pending before the Court of Appeal at Kisumu referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4190/eng@2021-02-24

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