Kilui & 8 others v Wafula & another (Environment & Land Case 113 of 2002) [2022] KEELC 2837 (KLR)
The bottom line
#The Environment and Land Court in Bungoma ordered an occupant evicted from disputed Kimilili land, ruling that filing an appeal does not automatically halt eviction.
What this practically means
#Executive summary
#Key legal issues
#Effect of pending appeal on execution of decree
The filing of an appeal does not as of right stay execution; the applicant must meet the Order 42 Rule 6 threshold and move the court formally.
The court cited Order 42 Rule 6(1) CPR, which requires an applicant for stay to demonstrate substantial loss, absence of unreasonable delay, security and sufficient cause. The 1st defendant filed no formal stay application at all. The consent order of March 8, 2011 vesting the land in the plaintiffs was never appealed, so ownership was no longer contested and any appeal against the October 28, 2021 ruling was incompetent. An appeal does not operate as a stay.
Abuse of court process and contempt as bars to discretionary relief
A party in contempt, who consented to the vesting orders and continues unlawful occupation, abuses court process and is undeserving of discretion in his favour.
The 1st defendant had been cited for contempt of the March 8, 2011 consent orders and fined Kshs. 50,000/= by Ombwayo J. He consented to the orders vesting the parcels in the plaintiffs yet continued occupying Kimilili/kimilili/2323 and 2435 without rebutting the averment of forceful occupation. Citing Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd, the court held that equity would not bend further to a party with 'irredeemably soiled hands'.
Legal principles established
#- An appeal does not operate as a stay of execution or proceedings unless the court so orders.
- Stay of execution is a discretionary remedy that can be denied to a party in contempt or abusing court process.
- A party who consented to and did not appeal a consent order cannot thereafter resist its enforcement.
Court orders
#- 1.Mathew Munyole Wafula be evicted from the land parcels No Kimilili/kimilili/2323 and 2435 forthwith in compliance with Section 152 G of the Land Act
- 2.The Officer Commanding Kimilili Police Station (OCS) to provide security to the Court Bailiff during the exercise should there be any resistance
- 3.The 1st defendant shall meet the costs of this application
- Jurisdiction invoked
- Civil Procedure Rules, Order 42 Rule 6; Land Act, Section 152 G; Court's pre-existing suit and consent orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilui & 8 others v Wafula & another (Environment & Land Case 113 of 2002) [2022] KEELC 2837 (KLR)", Case Analysis (2022). Bungoma ELC (Kimilili land parcels Kimilili/kimilili/2438, 2435, 2432, 2436, 2431, 2433, 2434, 2395 and 2323). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2837/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.