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ELCDismissedMaua ELC Case No 266 of 2018 (appeal)· [2023] KEELC 430 (KLR)

Hawo Abdi Mucheke & others v Respondent (stay of execution application)

Environment and Land Court
1 February 2023
916 words in judgment
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The bottom line

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The Environment and Land Court in Maua dismissed a stay application because the applicants proved no real loss and offered no security.

What this practically means

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Executive summary

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This is a ruling on a notice of motion by the applicants, led by Hawo Abdi Mucheke, seeking a stay of execution of a decree issued in Maua ELC Case No 266 of 2018 following a judgment delivered on October 17, 2022. By that judgment the applicants were ordered to pay Kshs 300,000 in general damages, to vacate the suit land after at least 90 days' notice, and a permanent injunction was issued restraining them from interfering with the respondent's use, occupation and development of the land. The applicants argued the appeal had high chances of success and would be rendered nugatory if eviction proceeded. The court, applying Order 42 rule 6 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, and authorities including RWW v EKW, James Wangalwa v Agnes Naliaka Cheseto, Silverstein v Chesoni and the Supreme Court's decision in Commission v Oduor citing Moi High School Kabarak v Malcom Bell, found that stay requires demonstration of substantial loss, filing within reasonable time, and offer of security. Although the delay was not inordinate, the applicants attached no decree, exhibited no notice to vacate, failed to substantiate the particulars of substantial loss for each applicant, made no proposal for security, and the deponent lacked authority to swear for the others. The court dismissed the application with costs and directed that the lower court file be availed on priority basis.

Key legal issues

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01

Substantial loss

Holding

Mere allegations of substantial loss without cogent and tangible evidence do not satisfy Order 42 rule 6

Reasoning

The applicants alleged the appeal would be rendered nugatory if eviction proceeded, but attached no decree, exhibited no notice to vacate, and gave no particulars of each applicant's occupation or likely loss. A mere admission of occupation by the respondent at trial is insufficient; the applicant must illustrate how execution would affect the substratum of the appeal.

p. 2
02

Security for due satisfaction of the decree

Holding

The applicants made no proposal for security despite a monetary decree of Kshs 300,000, and the court cannot impose security on its own motion

Reasoning

Order 42 rule 6 requires an applicant for stay to offer security. Although the trial court awarded general damages plus costs and interest, the applicants proposed nothing. The court held it is not its role to craft security for a party; the applicant must satisfy all conditions to persuade the court to grant the orders.

p. 3
03

Reasonable time

Holding

The application filed about one month after judgment was not inordinately delayed

Reasoning

Judgment was delivered on October 17, 2022 and the application filed on November 1, 2022. The court found the period of one month not inordinately long, and noted no evidence that the respondent had executed the decree or taken over the land, so the application was not overtaken by events. The application nonetheless failed on the other conditions.

p. 2

Legal principles established

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  • A party seeking stay must demonstrate substantial loss, file within reasonable time and offer security; it is not for the court to impose security

Court orders

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  1. 1.The application for stay of execution is dismissed with costs
  2. 2.The lower court file to be availed on priority basis
On appeal from
ELC (Maua ELC Case No 266 of 2018)
266 of 2018
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure 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, "Hawo Abdi Mucheke & others v Respondent (stay of execution application)", Case Analysis (2023). Maua ELC Case No 266 of 2018 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/430/eng@2023-02-01

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