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ELCStruck OutMiscellaneous Application 39 of 2021· [2022] KEELC 14974 (KLR)

Musau v Seme & another

Environment and Land Court
23 November 2022
ANA. Nyukuri
1,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a stay application because the applicant had not actually filed an appeal—intending to appeal is not enough.

What this practically means

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Executive summary

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The applicant, Benjamin Musyoki Musau, moved the Environment and Land Court at Machakos by miscellaneous application seeking stay of execution of the judgment and orders of the SPM Kangundo in ELC Case No. 76 of 2020, delivered on June 2, 2021, in favour of the 1st respondent, pending an intended appeal. He argued the intended appeal had high chances of success, that he was denied the opportunity to give evidence as the suit proceeded by written submissions, that land is a precious commodity likely to change title to his detriment, and that the 1st respondent would suffer no prejudice as she was in occupation. The 1st respondent opposed, asserting she had proved adverse possession, that the applicant's advocate consented to the mode of hearing, and that the application was a delaying tactic; she sought security conditions if stay issued. The court framed a single issue: whether the applicant met the threshold for stay pending appeal under Order 42 rule 6 of the Civil Procedure Rules. It held that an applicant must demonstrate a pending appeal, substantial loss, and absence of unreasonable delay. Finding no evidence that any appeal had been filed - the applicant referred only to an 'intended appeal' - the court held the application was ungrounded and incompetent, and struck it out with costs to the 1st respondent.

Key legal issues

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01

Whether stay of execution pending appeal can be granted where no appeal has been filed

Holding

Stay pending appeal cannot be granted where no appeal exists; an intention to appeal is insufficient and the application is incompetent

Reasoning

Order 42 rule 6 requires the applicant to show a pending appeal, substantial loss and absence of unreasonable delay. The applicant filed a miscellaneous application for stay without filing the appeal, referring only to an 'intended appeal'. The court held the route chosen achieves nothing and the application, lacking an appeal upon which it could be predicated, was ungrounded and incompetent, warranting striking out with costs.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate a pending appeal, substantial loss, and that the application was filed without unreasonable delay

Court orders

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  1. 1.Struck out the application dated June 2, 2021 with costs to the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
On appeal from
SPM Kangundo
ELC Case Number 76 of 2020
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, "Musau v Seme & another", Case Analysis (2022). Miscellaneous Application 39 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14974/eng@2022-11-23

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