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ELCAllowedNotice of Motion dated 24th September 2020 (arising from Nanyuki CMCC No 141 of 2018)· [2022] KEELC 3219 (KLR)

Muli v Gichohi (Environment and Land Appeal E3 of 2020) [2022] KEELC 3219 (KLR)

High Court of Kenya
26 May 2022
JOJ. O. Olola
867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court stopped an eviction pending appeal because the appellant lives on the land, showing courts protect homes from execution during appeals.

What this practically means

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Executive summary

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This is a ruling by J. O. Olola, Judge, delivered in open court at Nyeri on 26th May 2022, on the appellant Bernard Musembi Muli's notice of motion dated 24th September 2020 seeking stay of execution of the judgment and orders issued on August 20, 2019 in Nanyuki CMCC No 141 of 2018, pending appeal. The appellant argued that judgment was entered in default of appearance after his former advocates failed to attend court or inform him of the hearing date; he only learned of the judgment on September 21, 2020 when summoned to Umande Police Station over eviction orders. He had occupied the suit land for over 30 years, built his home there, and offered security. The respondent Joseph Gatheca Gichohi opposed, noting the appellant's history of non-attendance, including a prior default judgment, dismissed set-aside applications, and a consent reinstatement conditional on costs which he complied with, yet again failed to attend the hearing on July 9, 2019 when his counterclaim was dismissed and judgment entered. The court applied the RWW v EKW principle that stay preserves the subject matter so the appeal is not rendered nugatory, while balancing the successful litigant's right to the fruits of judgment. Finding it uncontested that the suit proceeded in the appellant's absence and that he resides with his family on the suit land, the court held he would suffer substantial loss if eviction were not stayed. The motion was allowed in terms of prayer 4, with costs in the appeal.

Key legal issues

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01

Whether to grant stay of execution pending appeal

Holding

Stay granted because the appellant, in occupation of the suit land with his home, stands to suffer substantial loss if eviction is not stayed pending appeal.

Reasoning

The court adopted the RWW v EKW statement of principle that stay preserves the subject matter and the appeal's usefulness, weighed against the respondent's right to the fruits of judgment. It found uncontested that the matter proceeded without the appellant, who blamed his former advocate, and that he has lived on and built his home on the suit land for years. On those facts substantial loss was established and the motion was allowed in terms of prayer 4.

p. 2

Legal principles established

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  • Stay of execution pending appeal preserves the subject matter so the appeal is not rendered nugatory, balancing the appellant's right of appeal against the successful litigant's right to the fruits of judgment.

Court orders

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  1. 1.The Motion dated September 24, 2020 is allowed in terms of Prayer No 4 thereof (stay of execution of the judgment and orders of August 20, 2019 in Nanyuki CMCC No 141 of 2018 pending appeal)
  2. 2.The costs of the application shall be in the appeal

Authorities

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Cases cited (1)

  • RWW v EKW
    (2019) eKLR
On appeal from
Nanyuki Chief Magistrate's Court
Nanyuki CMCC No 141 of 2018
Jurisdiction invoked
Stay of execution pending appeal under civil procedure appellate jurisdiction

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, "Muli v Gichohi (Environment and Land Appeal E3 of 2020) [2022] KEELC 3219 (KLR)", Case Analysis (2022). Notice of Motion dated 24th September 2020 (arising from Nanyuki CMCC No 141 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3219/eng@2022-05-26

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