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ELCDismissedEnvironment and Land Court Appeal Case No. 25 of 2019 (arising from Machakos CMCC No. 552 of 2013)· [2022] KEELC 398 (KLR)

Susan Anna Karanja v Francis Muoka Matheka & 5 others [2022] KEELC 398 (KLR)

Environment and Land Court of Kenya
27 April 2022
COChristine Ochieng
1,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause execution of a land judgment because the appellant showed no substantial loss, delayed nearly three years, and offered no security.

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 Machakos on the Appellant's Notice of Motion dated 7th September 2021, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, seeking stay of execution of the judgment delivered on 11th June 2019 in Machakos CMCC No. 552 of 2013, which ordered cancellation of the Appellant's title to LR No. Athi River/Athi River Block 1/208, pending her appeal. The Appellant argued she was a bona fide purchaser who had developed the land, that prior dismissed stay applications were not heard on merit, and that the appeal would be rendered nugatory. The 1st and 2nd Respondents opposed, contending the application was res judicata, that the sale was fraudulent, and that the land would revert to the deceased's estate for distribution, so no substantial loss would ensue. The court framed a single issue: whether stay pending appeal should be granted. Applying Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal and James Wangalwa authorities, the judge held the Appellant had failed to demonstrate substantial loss, had filed the application after inordinate delay (judgment having been delivered almost three years earlier), and had pursued myriad stay applications instead of prosecuting the appeal. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the application was res judicata given prior dismissed stay applications

Holding

The court did not rest its decision on res judicata but observed the appellant had filed numerous applications for stay instead of pursuing the appeal

Reasoning

The court noted previous stay applications had been dismissed for non-attendance and the application to reinstate was dismissed. Rather than determine res judicata, the judge treated the multiplicity of applications as contributing to delay, a relevant factor under Order 42 Rule 6(2).

p. 3
02

Whether the appellant demonstrated substantial loss warranting stay of execution pending appeal

Holding

The appellant failed to demonstrate substantial loss; the court declined to grant stay

Reasoning

The court noted the suit land would revert to the deceased's estate and remain available to beneficiaries, so no substantive loss would arise. The appellant had also delayed: judgment was delivered almost three years before the application, and she had not set down the appeal since filing the memorandum in June 2019. The conditions in Order 42 Rule 6(2) were therefore unmet.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security
  • Execution will not be stayed unless it would irreparably affect the essential core of the applicant's position

Court orders

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  1. 1.Dismissal of the Appellant's Notice of Motion application dated 7th September, 2021 seeking stay of execution pending appeal
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (9)

  • NIC Bank Kenya PLC Vs Joshua Onani Ogembo
    (2018) eKLR
  • Paul Kipsigei Rono V Johana Kipkemoi Rono
    (2014) eKLR
  • CFC Stanbic Bank Limited Vs John Kun’gu Kiarie & Another
    Civil Appeal (Application) No. 62 of 2016
  • Nickson Muthoka Mutavi V Kenya Agricultural Research Institute
    Civil Appeal No. 92 of 2012
  • Independent Electoral & Boundaries Commission V Maina Kiai & 5 Others
    (2017) eKLR
  • Kenya Shell Ltd V Kibiru
    C A No. 197 of 1986
  • City Hopper Ltd V Thomas Jeremiah Kivuva
    HCCA No. 2016 of 2018
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another Vs Agnes Naliaka Cheseto
    (2012) eKLR
On appeal from
Chief Magistrate's Court, Machakos
Machakos CMCC No. 552 of 2013
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 42 Rule 6(1) 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, "Susan Anna Karanja v Francis Muoka Matheka & 5 others [2022] KEELC 398 (KLR)", Case Analysis (2022). Environment and Land Court Appeal Case No. 25 of 2019 (arising from Machakos CMCC No. 552 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/398/eng@2022-04-27

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