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ELCAllowedNot stated in judgment (appeal from CM's ELC Case Number E003 of 2021)· [2022] KEELC 856 (KLR)

Mutethya Ali v Gregory Mathew Kyalo (Environment & Land Case 32 of 2021) [2022] KEELC 856 (KLR)

Environment and Land Court
9 March 2022
LKL. G. Kimani
1,437 words in judgment
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The bottom line

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Kenya's Environment and Land Court halted execution of a land judgment because building a petrol station during an appeal could permanently destroy the land and the appeal itself.

What this practically means

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Executive summary

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This was a ruling on an application dated 20 April 2021 brought under Order 42 Rule 6 and Order 51 of the Civil Procedure Rules seeking stay of execution of the judgment and ruling delivered in CM's ELC Case Number E003 of 2021 by Hon. M Kasera, SPM on 25 March 2021, pending hearing and determination of an appeal to the Environment and Land Court at Kitui. The applicant, Mutethya Ali, argued that the respondent had partially demolished her house despite a 30-day stay issued by the subordinate court, scared away her tenants, and threatened to demolish the remaining buildings, rendering the appeal nugatory. The respondent opposed, stating he intended to construct a petrol station on his land and that the applicant's conduct had halted construction, causing financial losses. The court set out the three conditions in Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security - and applied Kenya Shell v Kibiru and Butt v Rent Restriction Tribunal. Finding that construction of a petrol station on the disputed land would change its nature to the applicant's detriment if the appeal succeeded, the court held preservation of the property was in the interests of justice. The application was allowed: stay of further execution granted pending appeal, conditioned on the applicant depositing Kshs 200,000 in court within 60 days, failing which the stay lapses; costs in the cause.

Key legal issues

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01

Whether the applicant demonstrated substantial loss justifying stay of execution pending appeal

Holding

Yes; the respondent's intended petrol station construction on the disputed land would change its nature to the applicant's detriment if the appeal succeeds.

Reasoning

The court applied Order 42 Rule 6(2) conditions and the Kenya Shell v Kibiru and Butt v Rent Restriction Tribunal principles. The respondent intended to construct a petrol station on the disputed portion; such construction would permanently alter the suit land and render any successful appeal nugatory. The applicant also alleged partial demolition and eviction of tenants. Stay was granted on condition of a Kshs 200,000 deposit as security within 60 days.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for granting stay of execution pending appeal.
  • A stay ought to be granted so that an appeal, if successful, is not rendered nugatory.
  • A successful litigant should not be deprived of the fruits of a judgment without just cause.

Court orders

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  1. 1.An order of stay of further execution of the judgment and ruling delivered in CM's ELC Case Number E003 of 2021 on 25.3.2021 pending hearing and determination of the appeal
  2. 2.Stay granted on condition that the applicant deposits Kshs 200,000/- in court within 60 days, failing which the stay lapses automatically
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder XLI Rule 4 (as referenced in Kenya Shell v Kibiru)

Cases cited (3)

  • Kenya Shell v Kibiru and Another
    (1986) KLR 410
  • Butt v Rent Restriction Tribunal
    (1979) eKLR
  • Wilson v Church (No 2)
    12 Ch D (1879) 454
On appeal from
Magistrates' Court (CM's ELC)
E003 of 2021
Jurisdiction invoked
Order 42 Rule 6 and Order 51 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, "Mutethya Ali v Gregory Mathew Kyalo (Environment & Land Case 32 of 2021) [2022] KEELC 856 (KLR)", Case Analysis (2022). Not stated in judgment (appeal from CM's ELC Case Number E003 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/856/eng@2022-03-09

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