Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2022] KEELC 229 (KLR)

Francis Matheka Kata v Betty Kamene Kimote & 2 others [2022] KEELC 229 (KLR)

Environment and Land Court
20 April 2022
3,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court stopped execution of a land judgment pending appeal, but only after the appellant agreed to deposit Kshs 300,000 as security within 21 days.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court on a Notice of Motion dated 6th October 2021 by the Appellant seeking stay of execution of a judgment of the lower court delivered on 8th September 2021, pending appeal. The lower court had dismissed the Appellant's suit claiming ten acres purchased from the 1st Respondent and allowed the 2nd Respondent's counter-claim, declaring her the rightful owner of three acres within the Appellant's portion of Makueni/Unoa/79 and issuing an injunction against the Appellant. The Applicant argued he would suffer substantial loss, including eviction or transfer of the land to third parties, rendering the appeal nugatory, and that the application was brought timeously and he was willing to furnish security. The Respondents opposed, contending there was no demonstrated substantial loss, no threat of eviction as the decree had not been extracted, and that no security had been disclosed. The court, presided over by Hon. T. Murigi J, framed one issue: whether the conditions in Order 42 Rule 6 of the Civil Procedure Rules were satisfied. Applying Butt v Rent Restriction Tribunal, RWW v EKW, Mukuma v Abuoga, Tropical Commodities and Arun C Sharma, the court found that the 2nd Respondent's title was processed while interim preservation orders were still in force, so the Applicant's fears of interference with the subject matter were not baseless; that the application filed on 7th October 2021 was made without undue delay; and that the Applicant's willingness to provide security sufficed. The application was allowed: stay of execution granted pending appeal, Kshs 300,000 security to be deposited within 21 days failing which the stay lapses, with each party bearing its own costs.

Key legal issues

#
01

Whether the Applicant will suffer substantial loss if stay is not granted

Holding

Substantial loss was established because the subject land could be sold or transferred to third parties, rendering the appeal nugatory; the court noted the 2nd Respondent's title was processed while interim preservation orders were in existence.

Reasoning

The court found the Applicant's apprehension that the 2nd Respondent might sell or transfer the suit land was not baseless, since the Respondent's title over the three acres was processed during the pendency of the suit and while interim preservation orders were still in force. The trial court having declared the 2nd Respondent owner of three acres within the Applicant's parcel, the court held it was its duty to preserve the subject property of the appeal.

p. 4
02

Whether the application was made without unreasonable delay

Holding

The application, filed on 7th October 2021 following a judgment delivered on 8th September 2021, was made without undue delay.

Reasoning

The court noted the judgment was delivered on 8th September 2021 and the present application was filed on 7th October 2021, concluding the application was brought without undue delay.

p. 4
03

Whether the Applicant provided security for the due performance of the decree

Holding

The Applicant's expressed willingness to provide security as directed by the court satisfied the requirement; the court fixed security at Kshs 300,000.

Reasoning

The court reiterated that Order 42 Rule 6(2)(b) is couched in mandatory terms requiring security for performance of the decree, and relying on the Arun C Sharma authority that the purpose of security is to guarantee due performance rather than punish the judgment debtor, it found the Applicant's willingness to provide security sufficient and fixed Kshs 300,000 as security, with stay lapsing in default.

p. 5

Legal principles established

#
  • An applicant for stay of execution pending appeal must satisfy the three conditions of substantial loss, absence of unreasonable delay, and provision of security.
  • Substantial loss is a qualitative concept covering any loss of real worth or value.
  • The purpose of security under Order 42 Rule 6 is to guarantee due performance of the decree, not to punish the judgment debtor.

Court orders

#
  1. 1.Stay of execution of the judgment/decree granted pending the hearing and determination of the Applicant's Appeal
  2. 2.Applicant to deposit Kshs 300,000/= as security for costs in court within 21 days from the date of delivery of the ruling, in default the stay orders to automatically lapse
  3. 3.Each party to bear its own costs
On appeal from
Lower court (Magistrate's Court, Makueni)
null
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 3A and 63(c) and (e) of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Matheka Kata v Betty Kamene Kimote & 2 others [2022] KEELC 229 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/229/eng@2022-04-20

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