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ELCDismissedNot stated in the judgment· [2021] KEELC 4564 (KLR)

Cecilia Kadzo Emmanuel (Ssuing as the Administrator of Jonathan M. Karisa (Deceased) v Miriam Chea Mungai [2021] KEELC 4564 (KLR)

Environment and Land Court
29 January 2021
815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Malindi Environment and Land Court refused to stop execution of a judgment because a partial demolition of encroaching structures did not amount to substantial loss.

What this practically means

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Executive summary

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By a Notice of Motion dated 4th December 2009 (in fact 2019), Cecilia Kadzo Emmanuel, suing as administrator of Jonathan M. Karisa, sought a stay of execution of the judgment and decree of the Environment and Land Court at Malindi pending an appeal to the Court of Appeal, arguing that execution would demolish her remaining structures and render the appeal nugatory. The Defendant, Miriam Chea Mungai, opposed the application, contending it was filed after an unexplained inordinate delay of 41 days and that the Plaintiff neither lived on the suit property nor would suffer prejudice. The court applied the three prerequisites under Order 42 Rule 6 of the Civil Procedure Rules: substantial loss, absence of unreasonable delay, and security. It found the 40-day delay not inordinate but declined to find substantial loss, noting from the District Surveyor's Report that only part of the Plaintiff's house and cowshed encroached on the Defendant's parcel, and that no disposal of the encroached land was alleged. Applying James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that the mere likelihood of execution is not substantial loss. The application was dismissed with costs to the Defendant/Decree-holder.

Key legal issues

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01

Whether substantial loss was established to warrant a stay of execution pending appeal

Holding

No substantial loss established; partial demolition of encroaching structures is not substantial loss, particularly where no disposal of the encroached land is alleged

Reasoning

The court found that the Plaintiff's house and cowshed partly encroach on the Defendant's parcel per the District Surveyor's Report. The Plaintiff did not show the Defendant intended to sell or dispose of the encroached portion. Relying on James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that execution being a lawful process, its commencement or likelihood does not itself constitute substantial loss under Order 42 Rule 6.

p. 2
02

Whether the application was filed after unreasonable delay

Holding

The 40-day delay was not inordinate in the circumstances

Reasoning

Judgment was delivered on 24th October 2019 and the application filed some 40 days later. Although the Defendant attacked the delay as inordinate, the court, considering the circumstances, did not find the delay inordinate, satisfying one of the three prerequisites under Order 42 Rule 6. The application nonetheless failed on the substantial loss requirement.

p. 2

Legal principles established

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  • The mere putting in motion or likelihood of execution does not by itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules

Court orders

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  1. 1.The Motion dated 4th December 2019 is dismissed with costs to the Defendant/Decree-holder

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (1)

  • James Wangalwa & Another -vs- Agnes Naliaka Cheseto
    (2012) eKLR
Jurisdiction invoked
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, "Cecilia Kadzo Emmanuel (Ssuing as the Administrator of Jonathan M. Karisa (Deceased) v Miriam Chea Mungai [2021] KEELC 4564 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4564/eng@2021-01-29

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