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ELCDismissedELC Appeal No. 18 of 2021· [2022] KEELC 1041 (KLR)

Leah Njeri & 2 others v Adan Kanchoro Mulata & another [2022] KEELC 1041 (KLR)

Environment and Land Court
2 March 2022
COChristine Ochieng
2,202 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 (Christine Ochieng, J) on the Appellants' Notice of Motion dated 15th June 2021 in ELC Appeal No. 18 of 2021. The Appellants sought a temporary stay of execution of a ruling delivered on 2nd June 2021 in Mavoko MCELC E005 of 2020, and a stay of the proceedings in that suit, pending the hearing and determination of the appeal. They claimed ownership and occupation of land parcel LR No. 23313 (IR No. 80206) in Mavoko for over 14 years, alleging the Respondents had doctored registry documents, and argued they would be evicted and rendered homeless, rendering the appeal nugatory. The Respondents opposed, contending the impugned order was negative and incapable of being stayed, that the Appellants produced no title documents and never challenged the validity of the Respondents' title in the lower court, and that the Appellants had merely been trespassers repeatedly chased off the land since 2017. The court framed a single issue: whether temporary stay should issue. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the Butt v Rent Restriction Tribunal and James Wangalwa principles, the court found no eviction order had been granted in the impugned ruling, hence no positive order capable of being stayed. It also found the Appellants' occupation claims contradictory - the 2nd Appellant's own statement showed he began constructing a house only in 2020 - and that substantial loss had not been demonstrated. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the threshold in Order 42 Rule 6(2) of the Civil Procedure Rules for stay of execution pending appeal was met

Holding

The application failed because the impugned order was negative and incapable of being stayed, and the Appellants failed to demonstrate substantial loss or an arguable appeal

Reasoning

The court examined the impugned ruling and found no eviction order had been issued, so there was no positive order capable of being stayed. The Appellants' claim of 14 years' occupation was contradicted by the 2nd Appellant's own statement filed in the lower court, and they did not controvert the Respondents' averment that they were repeatedly chased away from the land. Although the application was filed without inordinate delay, substantial loss was not demonstrated.

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Legal principles established

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  • A negative order incapable of execution cannot be stayed under Order 42 Rule 6(2)
  • An applicant for stay must demonstrate substantial loss and that the application was made without unreasonable delay

Court orders

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  1. 1.The Appellants' Notice of Motion application dated 15th June 2021 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (12)

  • Elena Doudoladova Korir Vs Kenyatta University
    (2014) eKLR
  • Hassan Guyo Wakalo V Straman East Africa Ltd
    (2013) eKLR
  • Kamau Mucuha V Ripples Ltd
    (1993) eKLR
  • Ephraim Mwangi Gachigua V Teachers Service Commission & 12 Others
    (2021) eKLR
  • Kaushik Panchamatia & 3 Others V Prime Bank Limited & Another
    (2020) eKLR
  • Samuel Nyabeta Gesacho V Laban Munene
    (2021) eKLR
  • Philmark Systems Co. Ltd V Andermore Enterprises
    (2018) eKLR
  • Peter Mwaniki Njeru & Another V Vieta Wakere Kienge
    (2019) eKLR
  • Kivanga Estates Limited V National Bank of Kenya Limited
    (2017) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another Vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Kenya Commercial Bank Limited V Tamarind Meadows Limited & 7 Others
    (2016) eKLR
On appeal from
Magistrates' Court at Mavoko
Mavoko MCELC E005 of 2020
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal from subordinate court)

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, "Leah Njeri & 2 others v Adan Kanchoro Mulata & another [2022] KEELC 1041 (KLR)", Case Analysis (2022). ELC Appeal No. 18 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1041/eng@2022-03-02

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