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ELCPartially Allowed· [2023] KEELC 544 (KLR)

Mwangi (Suing as the administrator of the Estate of Joseph Mwangi Gathiari) v Mwangi (Sued as the administrator of the Estate of Susan Njeri Mwangi (Environment & Land Case 22 of 2021) [2023] KEELC 544 (KLR)

Environment and Land Court
2 February 2023
4,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won a temporary halt to a judgment against him, but only if he deposits his title deed in court and files his appeal within 30 days.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Murang'a (L. Gacheru J) on the Defendant/Applicant's notice of motion dated 31st August 2022. The Applicant, Nahashon Chege Mwangi, sought leave for M/S Kebuka Wachira & Company Advocates to come on record in place of R.M Kimani & Company Advocates, and stay of execution of the judgment and decree of the same Court delivered on 21st July 2022 in an Originating Summons in which the Plaintiff was held entitled to a portion of the Applicant's land. The Respondent opposed, arguing that a notice of appeal does not operate as stay, that no substantial loss was demonstrated, and that the application was filed after inordinate delay. The Court framed three issues: leave for the incoming advocates, stay, and costs. It granted leave, invoking Article 159 of the Constitution and applying Order 9 Rule 9 as explained in Tobias M. Wafubwa v Ben Butali. On stay, it applied Order 42 Rule 6 and found: the one-month delay was not inordinate since the Respondent had taken no execution steps beyond an eviction notice; the Applicant, in occupation of the suit land, would suffer substantial loss through cancellation of his title; and although no Memorandum of Appeal was attached, execution would render the intended appeal trifling. The Applicant's offer to furnish security was accepted. The Court allowed the application conditionally: the Applicant to deposit in Court the title deed for Loc. 18/Gachocho/4070 within 14 days and file the intended appeal within 30 days, failing which the stay lapses. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether leave was properly grantable for a new firm of advocates to come on record after judgment

Holding

Leave was granted; the Applicant complied with Order 9 Rule 9 by moving the Court for leave, and the Court exercised its discretion under Article 159 of the Constitution

Reasoning

Order 9 Rule 9 mandates a twofold process - application to Court or consent - where there is a change of advocate after judgment. The court distinguished appeals, which are fresh proceedings per Tobias M. Wafubwa v Ben Butali, but held that this stay application being in the suit required compliance. Uncertainty about notice to the outgoing advocate did not bar the exercise of discretion.

p. 3
02

Whether the filing of the application over a month after judgment amounted to inordinate delay

Holding

No inordinate delay; the delay of one month did not prejudice the Respondent who had not yet moved for execution

Reasoning

There is no precise measure of inordinate delay; it is context-specific. The Applicant had filed a Notice of Appeal which, though not operating as stay, lent credence to him. The Respondent had not obtained a decree or applied for execution, so the delay caused no unjust effect.

p. 6
03

Whether the Applicant demonstrated substantial loss

Holding

Yes; execution would result in cancellation of the Applicant's title, interfering with the substratum of the intended appeal and his occupation of the suit land

Reasoning

Substantial loss is qualitative and means loss of real worth. The Applicant was in occupation and his crops had allegedly been destroyed; the judgment required surrender of his title for cancellation, which would have far-reaching effects and complicate the intended appeal.

p. 6
04

Whether the appeal is frivolous and whether execution would render it nugatory

Holding

The Court could not determine frivolousness as no Memorandum of Appeal was attached, but held execution would render the appeal trifling/nugatory given the double cancellation of title

Reasoning

Without a Memorandum of Appeal, submissions alone could not establish arguability. On nugatory-ness, the land subject matter and the Applicant's undisputed occupation meant execution, including cancellation of title, would complicate the appeal and render it of little consequence if it succeeded.

p. 7
05

Whether the Applicant was willing to furnish security

Holding

Yes; the Applicant offered security, which is a mark of good faith, and the Court directed deposit of the title deed for Loc. 18/Gachocho/4070

Reasoning

Security under Order 42 guarantees due performance of the decree, not punishment of the judgment debtor. An offer of security suffices, with the Court determining its nature; the title deed deposit was imposed to prevent the Applicant from sitting on his right of appeal.

p. 8

Legal principles established

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  • No appeal operates as a stay of execution; stay under Order 42 Rule 6 requires substantial loss, absence of unreasonable delay and furnishing of security
  • A one-month delay in filing a stay application, absent prejudice to the decree holder and where no execution steps had been taken, is not inordinate delay
  • Substantial loss is a qualitative concept referring to loss of real worth or value, not a mathematical formula

Court orders

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  1. 1.Leave granted to the Law Firm of M/S Kebuka Wachira & Company Advocates to come on record for the Applicant in place of R.M Kimani & Company Advocates
  2. 2.Stay of execution of the judgment/decree of 21st July 2022 granted, conditional on the Applicant depositing in Court the title deed for Loc. 18/Gachocho/4070 as security within 14 days
  3. 3.The Applicant directed to file the Intended Appeal within 30 days, failing which the stay order will lapse automatically
  4. 4.Failure to deposit the security in Court means the stay order shall not be issued
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (19)

  • Vishram Ravji Halai v Thornton & Turpin
    Civil Application No. 15 of 1990
  • Samvir Trustee Limited v Guardian Bank Limited
    (2017) eKLR
  • M/S Portreitz Maternity v James Karanja Kabia
    Mbsa HC Civil Appeal No. 63 of 1997
  • Mohammed Salim T/A Choice Butchery v Nasserpuria Memon Jamat
    (2013) eKLR
  • Tobias M. Wafubwa v Ben Butali
    [2017] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • J M N v Z W G (The Guardian Of P K G)
    [2016] eKLR
  • Utalii Transport Company Limited & 3 others v Nic Bank Limited & another
    [2014] eKLR
  • G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another
    [2018] eKLR
  • John Barasa Matifari v Simon Wanjala Mabonga Substituted with Amos Wandabwa Mabonga
    [2021] eKLR
  • Tropical Commodities Suppliers Ltd and Others v International Credit Bank Limited (in liquidation)
    (2004) EALR 331
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    {2012}
  • Jimnah Mwangi Gichanga v Secretary TSC
    [2018] eKLR
  • Shah Munge & Partners Ltd v National Social Security Fund Board of Trustees & 3 others
    [2018] eKLR
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • Arun C Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Article 159 of the Constitution

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, "Mwangi (Suing as the administrator of the Estate of Joseph Mwangi Gathiari) v Mwangi (Sued as the administrator of the Estate of Susan Njeri Mwangi (Environment & Land Case 22 of 2021) [2023] KEELC 544 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/544/eng@2023-02-02

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