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ELCDismissedEnvironment and Land Appeal E50 of 2022· [2022] KEELC 4818 (KLR)

M'Laikuru v Kibwaa

Environment and Land Court
21 September 2022
CNC.K. Nzili
877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a burial on disputed land, ruling that claims of loss must be backed by real evidence, not just assertions.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (C.K. Nzili, J) on the appellant's application dated September 9, 2022 seeking stay of execution of a ruling or order made on September 8, 2022 by the trial court. The appellant, who has sued the respondent for trespass over LR No. Tigania/Kiguchwa/2200 in a lower court suit pending formal proof, sought to stop the intended burial of the respondent's daughter on the disputed land, contending that the burial would cause irreparable loss and render his appeal nugatory. The trial court, relying on the area chief's evidence, had declined to stop the burial. The court restated the settled conditions for stay of execution pending appeal: substantial loss, timeous application, and security for due satisfaction of the decree, all within the interest of justice under Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution. Citing Machira, Geth, Halal v Thorton & Turpin, Jason Ngumba Kagu, James Wangalwa, Norah Adongo Onyango and Betty Atieno Ndumo, the court held that substantial loss must be demonstrated with tangible and cogent evidence, and that burial of a deceased person on disputed land does not render an appeal nugatory. Noting the appellant's admission that the respondent had been on the land for many years and had a residence there, and that exhumation could be sought if the suit succeeded, the court found the claim of irreparable loss unsustainable and dismissed the application with costs.

Key legal issues

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01

Substantial loss for stay of execution

Holding

Applicant must prove substantial loss with tangible evidence; mere residence or burial on land does not suffice

Reasoning

The court applied the settled three conditions for stay - substantial loss, timeous application, security - plus overriding interest of justice. Citing Machira and Geth, it held that specific particulars of loss must be shown. The appellant admitted the respondent had long been on the land and had a residence there, and the lower suit was pending formal proof, so no irreparable loss was demonstrated.

02

Effect of intended burial on appeal

Holding

Interment does not render an appeal nugatory; exhumation is a remedy if the appeal succeeds

Reasoning

Relying on Norah Adongo Onyango and Betty Atieno Ndumo, the court held that the right or place of burial does not make an appeal nugatory. Since the appellant could seek exhumation if successful in his trespass suit, the claimed irreparable damage was unsustainable and the balance of convenience did not favour a stay.

p. 2

Legal principles established

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  • Substantial loss must be demonstrated with tangible and cogent evidence, not mere assertion
  • Burial of a deceased person on disputed land does not render an appeal nugatory

Court orders

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  1. 1.Application for stay of execution dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Machira t/a Machira & Co Advocates vs East Africa Standard
    (2003) KLR 63

    Party must prove specific details; no stay where no pecuniary or tangible loss is shown

  • Charles Wahome Geth vs Angela Wairimu Gathi
    Court of Appeal Civil Application No. Nai 302 of 2007

    Not enough to allege residence on land; applicant must show substantial loss

  • Halal & another vs Thorton & Turpin (1963) Ltd
    (1990) eKLR

    Applicant must meet the three conditions and show appeal will be rendered nugatory; principles go hand in hand

  • Jason Ngumba Kagu & 2 others vs Intra Africa Assurance Co. Ltd
    (2014) eKLR

    Substantial loss involves balancing respondent's right to fruits of judgment against applicant's right to appeal

  • James Wangalwa & another vs Agnes Naliaka Cheseto
    (2012) eKLR

    Substantial loss is what must be prevented by preserving the status quo as it would render appeal nugatory

  • Norah Adongo Onyango & another vs Jane Awino Onyango
    (2018) eKLR

    Interment of the deceased does not prevent the appellant from proceeding with the appeal

  • Betty Atieno Ndumo vs Elvis Ndumo
    (2022) eKLR

    Burial of a deceased does not render an appeal nugatory

On appeal from
Magistrates' Court (trial court)
Jurisdiction invoked
Sections 1A, 1B of the Civil Procedure Act and Article 159 of the Constitution (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, "M'Laikuru v Kibwaa", Case Analysis (2022). Environment and Land Appeal E50 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4818/eng@2022-09-21

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