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ELCPartially AllowedEmbu ELC Appeal (stay application dated 10th May 2021; decree in Embu MC ELC No. 156 of 2018)· [2022] KEELC 1637 (KLR)

Nephat Njiru M’kuma & 8 others v Mwaniki Muthee [2022] KEELC 1637 (KLR)

Environment and Land Court
1 February 2022
AKA.K. Kaniaru
2,417 words in judgment
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The bottom line

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Kenya's Embu Land Court granted a stay of execution only after ordering the losing land parties to deposit Kshs. 250,000 as security within 45 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu (A.K. Kaniaru, J) determined a notice of motion dated 10th May 2021 brought by Nephat Njiru M'kuma and 12 others, appellants in an appeal against Mwaniki Muthee, under Order 42 Rule 6 of the Civil Procedure Rules 2010. The applicants sought stay of execution of a decree in Embu MC ELC No. 156 of 2018, in which the respondent - the applicants' father - had successfully sued for removal of a caution they had placed on two parcels of land, Gaturi/Nembure/1433 and Kyeni/Kigumo/3841, which the applicants claimed as ancestral and matrimonial land. The respondent, through counsel, did not oppose the stay provided the applicants furnished security for due performance of the decree under Order 42 rule 6(2). The applicants resisted any security, contending the suit was non-monetary, the withdrawal of the caution would cost only Kshs. 500/=, the land itself was sufficient security, and the respondent had not demonstrated apprehension about their ability to pay costs. The court identified the sole issue as whether stay should issue. It held that deposit of security under Order 42 rule 6(2) is mandatory, that the suit land registered in the respondent's name could not serve as security, and that security's purpose is to guarantee due performance of the decree while preserving the subject matter. Balancing the applicants' interest in not rendering the appeal nugatory against the respondent's right to enjoy the fruits of judgment, the court granted stay conditional on the applicants depositing Kshs. 250,000/= in court within 45 days and filing the record of appeal within 60 days, in default of which the stay lapses, with costs of the application in the appeal.

Key legal issues

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01

Whether stay of execution pending appeal should be granted and on what conditions

Holding

Stay granted conditional on deposit of Kshs. 250,000/= as security within 45 days and filing of the record of appeal within 60 days, failing which the stay lapses

Reasoning

The court exercised its discretion, noting the respondent did not oppose the stay provided security was given. The suit land could not serve as security since it is registered in the respondent's name. Balancing the applicants' interest in not rendering the appeal nugatory against the respondent's right to enjoy the fruits of his judgment, a monetary deposit of Kshs. 250,000/= was fixed.

p. 3
02

Whether the security requirement under Order 42 rule 6(2) is mandatory

Holding

Yes; the deposit of security is not optional but mandatory

Reasoning

The court examined the wording of Order 42 rule 6(2) and held it to be in mandatory terms. Relying on Arun C Sharma v Ashana Raikundalia, it explained that the purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor, and in a land matter it serves to preserve the subject matter.

p. 2

Legal principles established

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  • A deposit of security under Order 42 rule 6(2) is a mandatory precondition to the grant of stay of execution pending appeal, and its purpose is to guarantee due performance of the decree, not to punish the judgment debtor.

Court orders

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  1. 1.Stay of execution of the decree in Embu MC ELC No. 156 of 2018 granted on condition that the applicants deposit Kshs. 250,000/= in court within 45 days from the date of the ruling
  2. 2.Applicants to file the record of appeal within 60 days, in default the stay lapses
  3. 3.Costs of the application to be in the appeal
On appeal from
Principal Magistrate's Court, Embu
Embu MC ELC No. 156 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010

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, "Nephat Njiru M’kuma & 8 others v Mwaniki Muthee [2022] KEELC 1637 (KLR)", Case Analysis (2022). Embu ELC Appeal (stay application dated 10th May 2021; decree in Embu MC ELC No. 156 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1637/eng@2022-02-01

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