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ELCDismissedNot stated in the judgment (appeal from Mavoko CM ELC 8 of 2019)· [2022] KEELC 2395 (KLR)

Mulei & another ((Suing in her capacity as the administrator of the Estate of the late Lilian Wanjiru Magira)) v Maina & 2 others (Environment and Land Appeal 36 of 2021) [2022] KEELC 2395 (KLR)

Environment and Land Court
31 May 2022
2,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a ruling on the Appellants' Notice of Motion dated 16th August 2021 seeking stay of execution of the judgment of Hon. B. H Onkwani PM delivered on 5th August 2021 in Mavoko CM ELC 8 of 2019, together with injunctions restraining the Respondents from dealing with land parcel No. 48 Phase 11B at Mlolongo, Machakos County, pending appeal. The Appellants, administrators of the estate of the late Lilian Wanjiru Magira, claimed the deceased was the registered owner and that their suit was wrongfully dismissed. The 1st Respondent, sister of the 1st Appellant, asserted she was the original allottee (Letter of Allotment of 17th August 2001 and Certificate of Ownership of 20th February 2007) who merely allowed the Appellants' mother temporary occupation before selling to the 2nd Respondent by agreement dated 7th November 2018. The 2nd and 3rd Respondents maintained the records confirmed the 2nd Respondent's ownership and that the appeal was unmerited. Framing one issue - whether stay should be granted - the court applied Order 42 Rule 6(2) and the authorities on stay and injunctions pending appeal. Noting that the trial court had upheld the 2nd Respondent's title on documents while the Appellants furnished no title documents, and that the Appellants had promised vacant possession before suing, the court held they failed to demonstrate substantial loss and lacked clean hands. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether stay of execution and injunction pending appeal should issue

Holding

Application dismissed; the Appellants failed to demonstrate substantial loss and lacked clean hands

Reasoning

Order 42 Rule 6(2) requires substantial loss, no unreasonable delay and security. The trial court had upheld the 2nd Respondent's title based on documents of title and the 3rd Respondent's records, while the Appellants produced no title documents. Having promised the 2nd Respondent vacant possession before suing, the Appellants lacked clean hands for equitable relief.

p. 4

Legal principles established

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  • An applicant for stay of execution must show substantial loss, bring the application without unreasonable delay, and furnish security
  • The purpose of an injunction pending appeal is to preserve the status quo and prevent the appeal from being rendered nugatory

Court orders

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  1. 1.The Appellants' Notice of Motion application dated 16th August, 2021 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 3B, 6, 63(e)
  • Civil Procedure RulesOrder 9 Rules 9, 10
  • Civil Procedure RulesOrder 42 Rule 6(2) and 6(6)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (7)

  • Canvass Manufacturers Ltd v Stephen Reuben Karunditu
    Civil Application No. 158 of 1994 (1994) LLR 4854
  • RWW vs EKW
    (2019) eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Public Trustee Vs Mary Achiza Liluwa
    Civil Appeal No. 8 of 2003
  • Mary Kerubo Nyanumba vs Norah Moraa
    Nairobi Civil Appeal No. 192 of 2003
  • Charter house Bank Limited v Central Bank of Kenya & others
    [2007] eKLR
  • Madhu Paper International Limited v Merr
    [1985] KLR 840
On appeal from
Principal Magistrates Court at Mavoko
Mavoko CM ELC 8 of 2019
Jurisdiction invoked
Section 1A, 1B, 3A, 3B, 6, 63(e) of the Civil Procedure Act; Order 42 Rule 6(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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Cite this brief

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Cite this brief

Caselaw, "Mulei & another ((Suing in her capacity as the administrator of the Estate of the late Lilian Wanjiru Magira)) v Maina & 2 others (Environment and Land Appeal 36 of 2021) [2022] KEELC 2395 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal from Mavoko CM ELC 8 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2395/eng@2022-05-31

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