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ELCPartially AllowedNotice of Motion filed 29 January 2021 (Misc. Application No. 437 of 2020, Chief Magistrate's Court at Milimani)· [2022] KEELC 1894 (KLR)

Stephen Kibere Gathiru & another v Abraham Kibere Gathiru & another [2022] KEELC 1894 (KLR)

Environment and Land Court
25 January 2022
SOS. Okong'o
1,972 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to stay execution of a costs order because the applicants showed no substantial loss, but gave them more time to appeal.

What this practically means

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Executive summary

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The applicants, the registered proprietor and a tenant of L.R No. 330/612 Argwings Kodhek Road, Valley Arcade, sought eviction of the respondents (the proprietor's son and wife) under section 152E of the Land Act, 2012 before the Chief Magistrate's Court at Milimani. That application was dismissed with costs on 30th October 2020, the lower court finding the section 152E conditions unmet, ownership unproven, the eviction notice not served on the County Commissioner and OCS, and the property subject of an active ELC Nyeri suit. The applicants then filed a Notice of Motion on 29th January 2021 seeking stay of execution of that ruling pending an intended appeal to the Environment and Land Court, and extension of time to file the appeal, citing non-notice of the ruling and COVID-19 delays. The respondents opposed, alleging inordinate delay, that the appeal was frivolous, and that the application was aimed at blocking recovery of costs, with the 1st respondent asserting the property is matrimonial property. Applying Order 42 Rule 6 and Kenya Shell Limited v Karuga, the court refused the stay, holding that the lower court made no positive order capable of execution save for assessed costs of Kshs. 57,300/-, which the applicants did not claim they could not pay or recover. However, the court granted extension of time to 1st February 2022 to file the appeal, finding valid reasons for the delay uncontested and no prejudice to the respondents. Each party was ordered to bear its own costs of the application.

Key legal issues

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01

Whether the applicants would suffer substantial loss if stay is not granted

Holding

No substantial loss was demonstrated; the only executable order was costs of Kshs. 57,300/- and the applicants did not show inability to pay or that payment would be irrecoverable

Reasoning

The court applied Order 42 Rule 6(2) and the Kenya Shell v Karuga test. The lower court merely dismissed the applicants' eviction application; no positive order was made against them capable of execution. The sole executable item was assessed costs of Kshs. 57,300/-, and the applicants never contended they could not pay or recover the amount from the respondents. Having failed on substantial loss, the court found it unnecessary to consider the other stay conditions.

p. 2
02

Whether extension of time to file the intended appeal should be granted

Holding

Extension granted; the applicants gave valid reasons for the delay as the ruling was delivered without notice and the respondents would suffer no prejudice

Reasoning

The uncontested facts were that the lower court ruling was delivered in the absence of the parties without notice, the applicants only learnt of it on 18th December 2020, and by then the time for appeal had lapsed. Delay to late January 2021 was thus explained, with COVID-19 slowing court operations. The court was satisfied that valid reasons for the delay existed and that the respondents would suffer no prejudice if the extension were granted.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for granting a stay of execution; without evidence of it a stay cannot issue
  • A stay of execution will not issue where the order sought to be stayed merely dismissed the applicant's application and no positive order capable of execution was made against the applicant, save for an order on costs which the applicant has not shown inability to pay or difficulty in recovering

Court orders

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  1. 1.The time for filing appeal against the decision of the lower court is extended up to and including 1st February, 2022.
  2. 2.The appeal shall be filed in a separate file.
  3. 3.The application for stay is refused.
  4. 4.Each party shall bear its own costs of the application.

Authorities

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Legislation

  • Land Actsection 152E
  • Civil Procedure RulesOrder 42 Rule 6 (and Rule 6(2))

Cases cited (1)

  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
On appeal from
Chief Magistrate's Court at Milimani Commercial Court
Misc. Application No. 437 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution) and the court's power to extend time for filing an appeal

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, "Stephen Kibere Gathiru & another v Abraham Kibere Gathiru & another [2022] KEELC 1894 (KLR)", Case Analysis (2022). Notice of Motion filed 29 January 2021 (Misc. Application No. 437 of 2020, Chief Magistrate's Court at Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1894/eng@2022-01-25

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