Republic v Chairman Land DisputesTribunal at Embu & another; Ex-parte Applicant/ Respondent: Mbaika Kaviti Kyunguti; Mathuva Mukemba (Interested Party/Applicant) [2021] KEELC 4588 (KLR)
The bottom line
#A Makueni court paused execution of a land judgment pending appeal, but only because the losing party agreed to deposit the awarded costs in court.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Applicant in possession of the suit property; execution would cause substantial loss
The court found the Applicant to be in possession and making use of the suit property, whether for residence or cultivation. The Respondent never averred in her replying affidavit that the Applicant was not settled on the land; that contention appeared only in submissions. Eviction pending appeal would render the appeal nugatory and cause strife, satisfying the substantial-loss limb of Order 42 Rule 6(2).
Unreasonable delay
Delay of about three and a half months was not unreasonable
Judgment was delivered on 18 June 2020 and a Notice of Appeal filed on 24 June 2020. The threat of execution crystallised upon service of the demand notice for taxed costs on 1 October 2020, and the application was filed the next day, 2 October 2020. The delay was therefore explainable and not unreasonable.
Security
Both parties willing to abide by a security order; deposit of taxed costs imposed as condition
The Applicant expressed willingness to provide security in his supplementary affidavit and the Respondent herself prayed that the taxed costs be deposited into a joint interest-earning account if stay were granted. The court granted stay conditional on the Applicant depositing the taxed costs of Kshs. 331,972/= within 45 days, balancing the right of appeal against the Respondent's right to enjoy the fruits of judgment.
Legal principles established
#- Stay is a discretionary power to be exercised so as not to render an appeal nugatory
Court orders
#- 1.Stay of execution of the judgment delivered on 18.06.2020 and all consequential orders pending the hearing and determination of the appeal
- 2.Applicant to deposit Kshs. 331,972/= (taxed costs) into a joint interest earning account in the names of the Advocates on record within 45 days, failing which the Respondent may execute
- 3.Costs of the application to be in the cause
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chairman Land DisputesTribunal at Embu & another; Ex-parte Applicant/ Respondent: Mbaika Kaviti Kyunguti; Mathuva Mukemba (Interested Party/Applicant) [2021] KEELC 4588 (KLR)", Case Analysis (2021). Not stated in the excerpt (JR application, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4588/eng@2021-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.