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ELCPartially AllowedNot stated in the judgment (application dated 6.10.2020)· [2021] KEELC 4532 (KLR)

Mbogori Baichu v David Gitonga Mungania [2021] KEELC 4532 (KLR)

Environment and Land Court
3 February 2021
1,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (Hon. Lucy N. Mbugua, ELC Judge) on the applicant/defendant's notice of motion dated 6.10.2020 seeking stay of execution of a judgment delivered on 30.9.2020, in which the plaintiff/respondent had obtained an award of Shs.6,120,000 in mesne profits, with a further Shs.180,000 accruing yearly until payment in full. The applicant asserted that execution would render his intended appeal nugatory, that the award was astronomical, that the respondent had no known income or property, and offered security. The respondent opposed, noting no notice of appeal (a contention the court found incorrect), the long inhibition of the land, and the 35-year history of the dispute, and proposed deposit of the decretal sum in an interest-earning account. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court found no unreasonable delay and noted the notice of appeal filed on 8.10.2020. On substantial loss, relying on Samvir Trustee, Wangalwa, and Baraza/Sethi, it held that residence on the land alone is insufficient and that the applicant, who lives on parcels 195 and 196 and merely farms the suit parcel, had not shown substantial loss as to use and title. However, possible irrecoverability of the decretal sum justified a conditional stay: stay of execution for one year upon deposit of Kshs.3,120,000 in an interest-earning account within 30 days, failing which the stay lapses, with costs of the application to the applicant/defendant.

Key legal issues

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01

Whether substantial loss was established

Holding

Substantial loss not established as regards use and title to the land, since the applicant does not live on the suit parcel; but substantial loss may arise if he pays the award and cannot recover it should the appeal succeed

Reasoning

The court observed that the applicant had settled on parcels 195 and 196 and only used the suit parcel for farming, so residence-based substantial loss claims failed. However, given the size of the award and the applicant's claim of no known income of the respondent, the court accepted possible loss if the decretal sum was paid and unrecoverable on a successful appeal, justifying a conditional stay.

p. 2
02

Unreasonable delay and notice of appeal

Holding

The application was filed without undue delay and a notice of appeal was on record, filed 8.10.2020

Reasoning

The judgment was delivered on 30.9.2020 and the application dated 6.10.2020; the court was satisfied there was no undue delay and noted the notice of appeal filed on 8.10.2020, satisfying that limb of Order 42 rule 6(2).

p. 2
03

Security for due performance of the decree

Holding

Conditional stay granted upon deposit of half the decretal sum (Kshs.3,120,000) in an interest-earning account within 30 days

Reasoning

The court balanced the respondent's entitlement to the fruits of his judgment against the applicant's possible irrecoverable payment, in light of the 33-year history of the dispute and the mesne profits of Shs.180,000 accruing yearly, and directed a conditional deposit as security.

p. 2

Legal principles established

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  • Stay of execution is a discretionary power of the court governed by Order 42 rule 6(2) conditions: substantial loss, no unreasonable delay, and security.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 30.9.2020 for a period of one year from the date of delivery of the ruling
  2. 2.The applicant/defendant to deposit Kshs.3,120,000 in an interest earning account within 30 days, failing which the stay orders shall lapse
  3. 3.The applicant to pay costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (8)

  • Charles Ngatia Nguyo vs Ekira Gathani Kariithi
    (2014) eKLR
  • Mary Cheptoo Soke vs Samson Cheruiyot & another
    (2015) eKLR
  • Kalondu Mbusya vs Martin Kimwele Kikoi & 10 others
    (2005) eKLR
  • Amal Hauliers Limited v Abdulnasir Abukar Hassan
    [2017] eKLR
  • Samvir Trustee Limited V Guardian Bank Limited
    [2007] eKLR
  • Wangalwa & another vs Agnes Naliaka Cheseto
    Misc. application no. 42 of 2011 (2012) eKLR
  • Wellington Lusweti Baraza & 43 others vs Lands Limited & another
    (2015) eKLR
  • Charles Wahome Sethi vs Angela Wairimu Gethi
    Court of Appeal No. 302 of 2007
Jurisdiction invoked
Order 42 rule 6(2) 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, "Mbogori Baichu v David Gitonga Mungania [2021] KEELC 4532 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 6.10.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4532/eng@2021-02-03

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