Mukoleli v Wasike & 2 others

Environment and Land Court of Kenya

31 October 2022

ECE.C. Cherono

1,329 words in judgment

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The bottom line

A Kenyan court refused to pause execution of a land judgment because the applicant waited nine months and showed no real risk of losing the property.

What this practically means

Executive summary

This is a ruling of the Environment and Land Court at Bungoma (E.C. Cherono J) on the 2nd defendant's notice of motion dated September 19, 2022 seeking stay of execution of the decree pending his appeal, Court of Appeal Case No 4 of 2022 at Kisumu. The applicant had been adjudged to transfer 4 acres of land to the respondent, and his movable properties were proclaimed and attached by Timpech Auctioneers on September 14, 2022. He argued he would suffer substantial loss through eviction and loss of investments, and offered to settle taxed costs in monthly installments of Kshs 20,000 as security. The respondent opposed, contending the application was brought after inordinate delay and in bad faith, and that he was entitled to enjoy the fruits of his judgment. Applying Order 42 rule 6(2) CPR, the court found the application was filed nine months after the December 9, 2021 judgment with no explanation, constituting unreasonable delay. On substantial loss, the court held that execution is a lawful process and cannot itself amount to substantial loss; for immovable property the applicant had to show the respondent would alienate the land to third parties, rendering the appeal nugatory, and no such allegation was made. Relying on Geoffrey Muriungi v John Rukunga M'imonyo (2016) eKLR, the court dismissed the application with costs.

Key legal issues

Unreasonable delay in bringing the stay application

Holding

The application filed 9 months after judgment, with no explanation, was brought with unreasonable delay.

Reasoning

Order 42 rule 6(2) requires that a stay application be made without unreasonable delay. Judgment was delivered on December 9, 2021 and the application filed on September 19, 2022, a nine-month gap. The applicant offered no explanation for the delay, so the first condition for stay failed.

p. 2

Substantial loss

Holding

Mere proclamation and attachment, or transfer of the adjudged 4 acres, does not constitute substantial loss absent allegations of alienation.

Reasoning

The court adopted the test that substantial loss means the loss the applicant would suffer if the appeal later succeeds. Execution is lawful and cannot itself be substantial loss. The applicant made no allegation that the respondent would alienate the 4 acres before the appeal is determined, so the appeal would not be rendered nugatory.

p. 3

Legal principles established

Execution of a decree is a lawful process and cannot in itself amount to substantial loss; the applicant must show the state of affairs that will cause substantial loss, such as alienation of immovable property rendering the appeal nugatory.
For immovable property, a stay applicant must demonstrate that the respondent would dispose of, sell, charge or alienate the property to third parties, thereby rendering the intended appeal nugatory.

Court orders

1.The notice of motion application dated September 19, 2022 is dismissed with costs

Authorities

Legislation

Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (1)

Geoffrey Muriungi & another v John Rukunga M'imonyo suing as legal representative of the estate of Kinoti Simon Rukunga (Deceased)
(2016) eKLR
Purpose of stay pending appeal; definition of substantial loss and rendering an appeal nugatory

Jurisdiction invoked: Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mukoleli v Wasike & 2 others", Case Analysis (2022). Environment & Land Case 62 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14668/eng@2022-10-31

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