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ELCDismissedMalindi ELC No. 38 of 2020· [2022] KEELC 3113 (KLR)

Mugambi v Mramba (Environment & Land Case 38 of 2020) [2022] KEELC 3113 (KLR)

Environment and Land Court
27 June 2022
3,484 words in judgment
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The bottom line

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The Malindi Environment and Land Court refused to stop an already-completed eviction, confirming that lawful evictions proceed even while an appeal is pending.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi determined two notices of motion by the defendant, Mark Kazungu Mramba, seeking stay of execution of the court's ruling and order of 31 August 2021 (which had ordered him to vacate the suit property, Parcel No. LR No. 20252/3 Kilifi, within 45 days) and his restoration to the suit property, pending hearing of Mombasa Civil Appeal No. 44 of 2021. The applicant had earlier lost a suit for adverse possession against the plaintiff and had been evicted on 16 October 2021 after the 45 days expired. He argued the eviction breached Order 21 rule 8 of the Civil Procedure Rules (no draft decree approval), section 94 of the Civil Procedure Act (execution before taxation without leave), and the United Nations Guidelines on Evictions, having been evicted at night with goons and policemen. The plaintiff opposed, contending the applications were overtaken by events and the eviction complied with a valid court order. M.A. Odency J framed two issues: whether the threshold for stay of execution pending appeal was met, and whether an evicted applicant could be restored to the land. Applying Order 42 rule 6 and precedent, the court found no substantial loss demonstrated, held section 94 inapplicable to non-monetary decrees, found no breach of Order 21 rule 8 since the order issued from a ruling, and declined restoration as the eviction followed the correct procedure. Both applications were dismissed with costs on 27 June 2022.

Key legal issues

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01

Stay of execution pending appeal under Order 42 rule 6

Holding

The applicant did not demonstrate substantial loss; the eviction was effected pursuant to a valid court order after expiry of the 45-day period, so stay was refused

Reasoning

The court applied Order 42 rule 6, noting the conditions are discretionary and must all be met. Relying on Joackim Ngugi Kiarie v Ul-Yate & others, the applicant was not the registered owner, his adverse possession claim had been dismissed, and the eviction had already occurred, so no substantial loss was shown.

p. 7
02

Compliance with section 94 of the Civil Procedure Act before execution of a non-monetary decree

Holding

Section 94 does not bar execution of a non-monetary decree before taxation of costs; the ground failed

Reasoning

The court adopted the reasoning in Sparkle Properties Limited v Johana Ngai & 8 others, agreeing there is little correlation between delivery of land and payment of costs. The order to vacate within 45 days had to be implemented first; no monetary decree needed ascertainment before eviction.

p. 6
03

Alleged non-compliance with Order 21 rule 8 (draft decree approval)

Holding

There was no breach; the order emanated from a ruling and the court has discretion to approve an order at the time of making it, so an extracted order does not require the opposing party's approval

Reasoning

The court held that Order 21 rule 8 preserves the court's power to approve a draft order at the time of making it. Since the order of 31 August 2021 was pronounced by the court itself following dismissal of the applicant's adverse possession suit, no draft decree approval process was required before execution.

p. 7
04

Whether an evicted applicant can be restored to the suit land pending appeal

Holding

Restoration was refused because the eviction followed the correct procedure

Reasoning

The court reasoned that restoration could only be considered where the eviction process was flawed. Having found the respondent implemented a valid court order by the proper procedure, there was no basis to restore the applicant to the suit land pending the hearing of Mombasa Civil Appeal No. 44 of 2021.

p. 7

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions in Order 42 rule 6, including demonstration of substantial loss
  • Section 94 of the Civil Procedure Act has little or no application to non-monetary decrees such as decrees for delivery of land
  • An order extracted upon delivery of a ruling does not require approval or amendment from the opposing party; Order 21 rule 8 is meant only to ensure the decree accords with the judgment

Court orders

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  1. 1.Both applications (dated October 5, 2021 and October 21, 2021) are dismissed
  2. 2.Costs of both applications to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 8
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure Actsection 94

Cases cited (7)

  • Penguin Holdings Ltd v Daniel Luwambi & others
  • Bamburi Portland Cement Co. Ltd v Hussein
    (1995) LLR
  • Lakeland Motors Ltd v Sembi
    (1998) LLR 682 (CAK)
  • Sparkle Properties Limited vs Johana Ngai & others
    [2020] eKLR
  • Joackim Ngugi Kiarie v Ul-Yate & others
    Nairobi Civil Suit No 1029 of 1982
  • Absalom Dova vs Tarbo Transporters
    (2013) eKLR
  • Selestica Ltd vs GoldRock Development Ltd
    (2015)
Jurisdiction invoked
Order 42 rule 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, "Mugambi v Mramba (Environment & Land Case 38 of 2020) [2022] KEELC 3113 (KLR)", Case Analysis (2022). Malindi ELC No. 38 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3113/eng@2022-06-27

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