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ELCDismissedMarimanti Miscellaneous Civil Case No. E001 of 2021 (appeal) – Notice of Motion dated 15.10.2021· [2022] KEELC 1137 (KLR)

Francis K. Chabari & anotherv Mwarania Gaichura Kairubi [2022] KEELC 1137 (KLR)

High Court of Kenya
28 February 2022
CYC. K. Yano
3,087 words in judgment
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The bottom line

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The High Court dismissed a request to pause execution of a land-beaconing order because the applicants delayed filing and could not show they would suffer real, irreversible loss.

What this practically means

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Executive summary

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This is a ruling by C. K. Yano, J of the High Court at Chuka delivered on 28th February 2022 on the applicants' notice of motion dated 15th October 2021 seeking stay of execution of the ruling and consequential orders of Hon. Nyaga S. M. SRM in Marimanti Miscellaneous Civil Case No. E001 of 2021 delivered on 23rd September 2021, pending an intended appeal. The lower court had ordered the Land Registrar and District Surveyor to visit Land Parcel No. 1478 Ciakariga 'A' adjudication section and place beacons in implementation of the Minister's decision subdividing the parcel into three portions. The applicants, appellants in the intended appeal, argued they would suffer substantial loss by losing their land, that the appeal had reasonable chances of success, and that no security need be deposited, relying on authorities including Antoine Ndiaye, RWW v EKW and Butt v Rent Restriction Tribunal. The respondent opposed, contending the application merely sought to delay implementation of a regular court order implementing the Minister's award, which the applicants never appealed against, and proposed deposit of Kshs. 100,000 as security. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Benjamin Karuga Kigibu. It found the application filed two months and nine days after the ruling without explanation, hence not made timeously. On substantial loss, the court held that merely placing beacons could not cause the applicants to lose their land since beacons can be removed and the land restored if the appeal succeeds. The application was dismissed with costs to the respondent.

Key legal issues

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01

Undue delay in bringing the stay application

Holding

The application filed about two months and nine days after the ruling, without explanation, was not made timeously

Reasoning

Order 42 Rule 6(2) requires the application be made without undue delay. The ruling appealed against was delivered on 23rd September 2021 and the application filed on 3rd December 2021, a gap of two months and nine days. The applicants offered no explanation for the delay, failing the first prerequisite.

p. 4
02

Substantial loss

Holding

Mere placing of beacons on the land does not amount to substantial loss since the beacons can be removed and the land restored if the appeal succeeds

Reasoning

The applicants feared losing their land if the survey and beaconing proceeded. The court held that the physical act of placing beacons is reversible; if the applicants succeed on appeal, the beacons can be removed and the land restored, so the appeal would not be rendered nugatory and substantial loss was not demonstrated.

p. 4

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without undue delay, and provide security for due performance of the decree
  • Substantial loss is not shown where the intended execution is reversible and the appeal, if successful, would not be rendered nugatory

Court orders

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  1. 1.The notice of motion dated 15th October, 2021 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)

Cases cited (8)

  • Antoine Ndiaye vs African Virtual University
    (2015) eKLR
  • RWW vs EKW
    (2019) eKLR
  • Butt vs Rent Restriction Tribunal
    {1982} KLR 417
  • James Wangaiwa & Another –vs- Agnes Naliaka Cheseto
    [2012] eKLR
  • Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Machira T/A Machira & Co Advocates –vs- East African Standard (No.2)
    (2002) eKLR 63
  • Absalom Dora –v- Turbo Transporters
    (2013) (eKLR)
  • Geoffery Muriungi & another v John Rukunga M'imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased)
    [2016] eKLR
On appeal from
Principal Magistrate's Court, Marimanti
Marimanti Miscellaneous Civil Case No. E001 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (24)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis K. Chabari & anotherv Mwarania Gaichura Kairubi [2022] KEELC 1137 (KLR)", Case Analysis (2022). Marimanti Miscellaneous Civil Case No. E001 of 2021 (appeal) – Notice of Motion dated 15.10.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1137/eng@2022-02-28

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