Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 16th March, 2020· [2022] KEELC 1140 (KLR)

Republic & 6 others v Deputy County Comissioner Yatta Sub County & 2 others; Kisilu Mulwa & 2 other (Interested Parties) [2022] KEELC 1140 (KLR)

Environment and Land Court
23 February 2022
COChristine Ochieng
1,404 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Machakos Environment and Land Court refused to pause enforcement of a land judgment because the applicants proved no real loss and applied in the wrong court.

What this practically means

#

Executive summary

#
The Applicants, aggrieved by a judgment of 31st January 2020 dismissing their judicial review application which had sought to quash the 1st Respondent's decision upholding an Arbitration Board's determination on title to suit land, brought a Notice of Motion dated 16th March 2020 seeking stay of execution of the decree pending their intended appeal to the Court of Appeal. They relied on Section 3A of the Civil Procedure Act and Order 42 Rules 6(1), 2, 3 and 4 of the Civil Procedure Rules, asserting an arguable appeal, absence of undue delay, risk of irreparable loss through threatened subdivision of the land, and willingness to provide security. The 1st Interested Party, Kisilu Mulwa, opposed the application, contending it was fatally defective for inordinate delay, that the 1st Respondent had jurisdiction, and that since the appeal would not determine ownership of the land, no substantial loss would ensue. The court framed a single issue: whether stay of execution should issue. Applying Order 42 Rule 6(2) and the Wangalwa v Cheseto and Co-operative Bank of Kenya decisions, the court held that the Applicants had not demonstrated substantial loss, as the dismissed suit did not determine ownership of the land; further, there was no positive order capable of being stayed, and having lodged a Notice of Appeal, the application should have been made in the Court of Appeal under Rule 5(2)(b). The application was dismissed with no order as to costs.

Key legal issues

#
01

Whether the Applicants met the threshold for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

Applicants failed to establish substantial loss and the conditions for stay were not met

Reasoning

The dismissed judicial review suit did not determine ownership of the suit land, so the applicants could not show that execution would cause them substantial loss. The court also found no positive order existed to be stayed, and noted that having lodged a Notice of Appeal, the application for stay pending appeal should have been lodged in the Court of Appeal under Rule 5(2)(b).

p. 3

Legal principles established

#
  • A stay of execution pending appeal requires demonstration of substantial loss, filing without unreasonable delay, and offering security
  • A stay of execution presupposes the existence of a positive order to be stayed

Court orders

#
  1. 1.The Applicants' Notice of Motion application dated the 16th March, 2020 is dismissed with no order as to costs

Authorities

#

Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rules 6(1), 2, 3 and 4
  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction Act (Court of Appeal Rules)Rule 5(2)(b)

Cases cited (8)

  • Masisi Mwita v Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015 (2016) eKLR
  • Salome Naliaka Wabwile v Alfred Okumu Musinaka
    (2021) eKLR
  • Muguga Green Apartments Vs Attorney General & 2 Others
    (2021) eKLR
  • Wangalwa & Another Vs Agnes Naliaka Cheseto
    Bungoma HC Misc Application No. 42 of 2011
  • Jaber Mohsen Ali & Another V Priscillah Boit & Another
    (2014) eKLR
  • Mwaura Karuga t/a Limit Enterprises Vs Kenya Bus Services Ltd & 4 Others
    (2015) eKLR
  • Co-operative Bank of Kenya Limited –vs- Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No.13 of 1984
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 42 Rules 6(1), 2, 3 and 4 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic & 6 others v Deputy County Comissioner Yatta Sub County & 2 others; Kisilu Mulwa & 2 other (Interested Parties) [2022] KEELC 1140 (KLR)", Case Analysis (2022). Notice of Motion dated 16th March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1140/eng@2022-02-23

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