Zachary Muli v Richard Muli Kilonzo [2022] KEELC 1043 (KLR)
The bottom line
#The Environment and Land Court refused to stop execution of a land judgment because the appellant proved no real loss and secretly recorded court proceedings are not new evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether to grant stay of execution of the judgment of 7th October 2020
Stay refused; the appellant failed to establish substantial loss under Order 42 Rule 6(2)
Judgment was delivered on 7th October 2020 and a memorandum of appeal filed on 18th November 2020, so the application was filed without inordinate delay. However, the suit land is registered in the joint names of both parties and would remain registered in the appellant's name; the appellant thus failed to demonstrate the substantial loss that execution would cause him.
Whether transcribed audio recordings of the lower court proceedings should be admitted as additional evidence
Refused; recordings made without leave of the lower court do not qualify as additional evidence
Section 78 of the Civil Procedure Act and Order 42 Rule 27 govern additional evidence on appeal, requiring exceptional circumstances or substantial cause. The appellant never sought leave to record proceedings, and typed proceedings from the lower court already exist. The matter having been concluded in the lower court, the oxygen rules and Article 159(2)(d) are unavailable to him at this stage; he should await determination of his appeal.
Whether the court has jurisdiction to order the DCI to summon witnesses and file a final report
No; the court is devoid of such jurisdiction
The appellant sought orders compelling the S.C.C.I.O Matungulu to file a final report and to summon named individuals to record statements. A DCI report dated 9th July 2019 was already presented in the lower court. Guided by section 13 of the Environment and Land Court Act, which defines the court's jurisdiction, the court held it cannot issue orders in a criminal investigative process.
Legal principles established
#- Stay of execution pending appeal requires satisfaction of Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security
- A stay is discretionary and must be granted so that an appeal is not rendered nugatory
- Additional evidence on appeal is not admissible merely because a party is dissatisfied with the certified proceedings, particularly where recordings were made without leave
Court orders
#- 1.The Appellant's Notice of Motion applications dated 18th November, 2020 and 4th December, 2020 are dismissed as unmerited
- 2.Costs will be in the cause
- On appeal from
- Senior Principal Magistrate's Court
- Not stated
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act; applications under sections 1A, 1B, 3A, 63(E), 65 & 95 of the Civil Procedure Act and Order 42 Rule 6 & Order 45 of the Civil Procedure Rules, Article 159(2)(d) & (c) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zachary Muli v Richard Muli Kilonzo [2022] KEELC 1043 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal from Senior Principal Magistrate's Court, judgement delivered 7th October 2020 by Hon. D. Orimba SPM). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1043/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.