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ELCDismissedNot stated in the excerpt (application dated 17.9.2021)· [2022] KEELC 1648 (KLR)

Alexander Mbugua & another v Beatrice Mutungi M’ituamikwa & another [2022] KEELC 1648 (KLR)

Environment and Land Court
9 February 2022
1,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land transfer order because the appellant proved nothing concrete and offered no security.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 17.9.2021 in which the applicant, Beatrice Mutunga M'Tuamikwa, sought a stay of execution of the Environment and Land Court's judgment pending an intended appeal to the Court of Appeal. She argued that the 2nd plaintiff was likely to sell or transfer 15 acres of the suit parcels after executing the decree, that she resided on the land with her family and would suffer substantial and irreparable loss, and that the intended appeal was arguable and would be rendered nugatory. The 1st and 2nd defendants opposed through the replying affidavit of Mwari Mbugua, denying the applicant's occupation, alleging delaying tactics, and asserting the applicant had not met the Order 42 Rule 6 threshold. The court framed the application against the three conditions in Order 42 Rule 6: substantial loss, timeliness, and security. It found the applicant had not demonstrated substantial loss with cogent and tangible evidence - no photographs, valuation report, or evidence of steps towards execution. On nugatory effect, the court held the transfer process would be reversible, as the defendants could be ordered to retransfer the land if the appeal succeeded. It also noted the applicant offered no security, including no offer to surrender the original title deed. Balancing the decree holder's rights against the right of appeal, the court found the application lacking in merit and dismissed it with costs on 9 February 2022.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

The applicant failed to prove substantial loss; no photographs, valuation report or evidence of execution was adduced

Reasoning

The court held that assertions alone are insufficient. The applicant attached no photographs or valuation report to show the loss likely to be occasioned, and did not show that the respondent had initiated execution before the land registrar for Laikipia County. In absence of such demonstration, the applicant failed on that ground.

p. 2
02

Whether the appeal would be rendered nugatory

Holding

No, because the transfer process would be reversible - the defendants could be ordered to retransfer the suit land if the appeal succeeded

Reasoning

The decree ordered the 1st defendant to sign consents and documents to effect transfer in favour of the 2nd plaintiff, with the Executive Officer executing in default. The court found that if the Court of Appeal found for the applicant, the defendants would simply be ordered to retransfer the land, so the process is reversible and damages/transfer can be undone.

p. 2
03

Whether security for the decree was offered

Holding

No security was offered, including no offer to surrender the original title deed, so stay would not be in the interest of justice

Reasoning

Order 42 Rule 6 requires an applicant to offer security for the due satisfaction of the decree. The applicant offered none and did not offer to surrender the original title deed. In line with sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution, the court found it would not be in the interest of justice to grant stay.

p. 2

Legal principles established

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  • Substantial loss must be demonstrated with cogent and tangible evidence, not mere assertion
  • Granting a stay involves balancing the decree holder's rights against the applicant's right of appeal, and the applicant bears a higher burden
  • An applicant for stay must offer security for the due performance of the decree

Court orders

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  1. 1.The notice of motion dated 17.9.2021 seeking stay of execution pending appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure Actsections 1A and 1B
  • Constitution of KenyaArticle 159

Cases cited (12)

  • Charles Kariuki Njuri –vs- Francis Kimaru
    [2020] eKLR
  • Mukuma –vs- Abuoga
    (1988) KLR 645
  • Butt –vs- Rent Restriction Tribunal
    [1982] KLR 417
  • Vishram Ravji Halai –vs- Thornton and Turpin
    [1990] KLR 365
  • Century Oil Trading Co. Ltd –vs- Kenya Shell Ltd
  • Samvir Trustee Ltd –vs- Guardian Bank Ltd
    [2007] eKLR
  • Machira T/A Machira & Co. Advocates –vs- East African Standard
    [2002] KLR 63
  • Stanley Kiplagat Rono & another –vs- William Kiprotich Cherus
    [2021] eKLR
  • Kenya Shell Limited –vs- Benjamin Karuga Kibiru & Another
    [1986] eKLR
  • Multimedia University & Another –vs- Professor Gitile N. Naituli
    [2014] eKLR
  • Mohammed Salim T/A Choice Butchery –vs- Nasserpuria Memon Jamat
    [2013] eKLR
  • Mwaura Karuga T/A Limit Enterprises Ltd. –vs- Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; sections 1A and 1B Civil Procedure Act; Article 159 of the Constitution

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, "Alexander Mbugua & another v Beatrice Mutungi M’ituamikwa & another [2022] KEELC 1648 (KLR)", Case Analysis (2022). Not stated in the excerpt (application dated 17.9.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1648/eng@2022-02-09

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