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ELCDismissedELC Case at Machakos (judgment delivered February 3, 2022)· [2023] KEELC 397 (KLR)

Ngandi & 2 others v Muthami & another (Environment & Land Case 130 of 2018) [2023] KEELC 397 (KLR)

Environment and Land Court
1 February 2023
COChristine Ochieng
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause execution of a judgment because the plaintiffs showed no real harm and there was no actual order to stay.

What this practically means

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Executive summary

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The plaintiffs filed a notice of motion dated May 26, 2022 seeking temporary and permanent injunctions restraining execution of the judgment delivered February 3, 2022 (which dismissed their suit over parcel number 139 Kawala adjudication section with costs), a stay of execution of the associated bill of costs, and maintenance of status quo pending appeal. Through Paul N Ngandi's affidavit, they attributed the delay in filing the substantive appeal to the ELC Machakos registry's failure to furnish typed proceedings and judgment, and asserted the appeal had high chances of success and that they stood to suffer irreparable harm. The 1st defendant opposed, describing the application as an abuse of process filed three months after judgment, noting the bill of costs was yet to be taxed and that he resided on the suit land where his forefathers are buried, and asserting he was a man of means capable of refunding any costs paid. The court framed a single issue: whether the plaintiffs were entitled to a stay of execution pending appeal. Applying Order 42 rule 6(2) of the Civil Procedure Rules and rule 5(2)(b) of the Court of Appeal Rules, and associating itself with the Co-operative Bank v BIFU decision (Kantai JA) and Wangalwa v Cheseto, the court found the plaintiffs had not demonstrated substantial loss, that there was no positive order to stay since the bill of costs remained untaxed and no substantive appeal had been filed, and that the application was really designed to deny the defendant his awarded costs. The application was dismissed with costs.

Key legal issues

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Whether the plaintiffs were entitled to a stay of execution pending appeal

Holding

No. The plaintiffs failed to demonstrate substantial loss; there was no positive order to stay since the bill of costs was untaxed and no substantive appeal had been filed; the application was effectively aimed at denying the defendant his awarded costs.

Reasoning

The court applied Order 42 rule 6(2) CPR and rule 5(2)(b) of the Court of Appeal Rules, requiring substantial loss, absence of unreasonable delay and security. Relying on Co-operative Bank of Kenya Limited v BIFU (Kantai JA), it held stay presupposes a positive order. Here the suit was dismissed, the bill of costs was untaxed, and no substantive appeal was on file. The 1st defendant was a man of means capable of refunding costs, and he resided on the suit land where his relatives are buried, so no substantial loss was shown.

p. 4

Legal principles established

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  • An order for stay of execution pending appeal presupposes a positive order in a decree that has not been complied with or has been partly complied with; where there is no positive order, there is nothing to stay
  • A stay of execution will not be granted where the applicant has not demonstrated substantial loss and the application was not made without unreasonable delay, per Order 42 rule 6(2)

Court orders

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  1. 1.The plaintiffs' notice of motion application dated May 26, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Appellate Jurisdiction Act (Court of Appeal Rules)rule 5(2)(b)

Cases cited (12)

  • Vishram Ravji Halai v Thornton & Turpin
    Civil Application No Nai 15 of 1990 (1990) KLR 365
  • Attorney General v Halal Meat Products Ltd
    Civil Application No Nai 270 of 2008
  • Mukuma v Abuoga
    (1988) KLR
  • Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd
    (2019) eKLR
  • Focin Motorcycle Co Limited v Ann Wambui Wangui
    (2018) eKLR
  • Butt v Rent Restriction Tribunal
    (1979); (1982) KLR 417
  • Kenya Shell Ltd v Kibiru & Another
    (1986) eKLR 410
  • Scotch Whisky Association & 2 others v Africa Spirits Ltd
    (2020) eKLR
  • Wangalwa & another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Samuel Mwaura Muthumbi v Josephine Ngugi & Another
    (2018) eKLR
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co Advocates v National Insurance Corporation
    Civil Appeal No 13 of 1984
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules and rule 5(2)(b) of the Court of Appeal Rules (Appellate Jurisdiction Act)

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, "Ngandi & 2 others v Muthami & another (Environment & Land Case 130 of 2018) [2023] KEELC 397 (KLR)", Case Analysis (2023). ELC Case at Machakos (judgment delivered February 3, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/397/eng@2023-02-01

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