Cecilia Kadzo Emmanuel (Ssuing as the Administrator of Jonathan M. Karisa (Deceased) v Miriam Chea Mungai [2021] KEELC 4564 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether substantial loss was established to warrant a stay of execution pending appeal
No substantial loss established; partial demolition of encroaching structures is not substantial loss, particularly where no disposal of the encroached land is alleged
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.
Whether the application was filed after unreasonable delay
The 40-day delay was not inordinate in the circumstances
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.
Legal principles established
#- 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
#- 1.The Motion dated 4th December 2019 is dismissed with costs to the Defendant/Decree-holder
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.