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ELCPartially AllowedEnvironment and Land Appeal E038 of 2022· [2023] KEELC 727 (KLR)

Maore v Munjuri (Environment and Land Appeal E038 of 2022) [2023] KEELC 727 (KLR)

Environment and Land Court
15 February 2023
CYC.K Yano
2,203 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Meru paused execution of a land judgment, but only because the appellant deposits Kshs 50,000 in court within 30 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C.K Yano, J) determined an application dated July 18, 2022 by the appellant, Pheneas Mwirigua Maore, seeking stay of execution of the judgment and decree of the Principal Magistrate's court at Tigania (Tigania PM ELC No 68 of 2019) delivered on July 7, 2022, pending appeal. The trial court had ordered cancellation of the certificate of title over land parcel Tigania/Thananga/1791, of which the applicant is the registered proprietor and in occupation. The respondent opposed, contending the applicant had not demonstrated substantial loss, had offered no security for due performance of the decree, and that a successful party is entitled to the fruits of judgment. The court framed the sole issue as whether stay of execution pending appeal was warranted under Order 42 Rule 6 of the Civil Procedure Rules. Relying on Butt v Rent Restriction Tribunal, Kenya Shell Ltd v Benjamin Karuga Kigibu, Absalom Dora v Turbo Transporters and Geoffrey Muriungi v John Rukunga M'Imonyo, the court held that the applicant must show substantial loss, absence of undue delay, and security. It found that execution would cancel the applicant's title, evict him, and render the appeal moot, constituting substantial loss, and that the respondent's prejudice was compensable by costs and interest. The application was allowed: stay of execution was granted pending hearing and determination of the appeal, conditional upon the applicant depositing Kshs 50,000/= in court as security within thirty days, failing which the stay lapses. Costs of the application were awarded to the respondent.

Key legal issues

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01

Substantial loss as a precondition to stay

Holding

The applicant stands to suffer substantial loss as execution would cancel his title and render the appeal moot

Reasoning

The court accepted the applicant's evidence that he is in occupation and the registered proprietor; if the respondent executed the decree, the title would be cancelled and the applicant possibly evicted, destroying the subject matter of the appeal. Balancing the parties' competing rights, the balance tipped in favour of the applicant, since the respondent's prejudice would be compensable by costs and interest.

p. 4
02

Security for due performance of the decree

Holding

Stay granted conditionally upon deposit of Kshs 50,000/= as security within 30 days

Reasoning

The applicant offered no security, which the respondent correctly argued is a prerequisite under Order 42 Rule 6. The court nonetheless exercised discretion in the applicant's favour but conditioned the stay on a deposit of Kshs 50,000/= in court within 30 days, failing which the stay automatically lapses.

p. 5

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without undue delay, and must give or be ready to give security for due performance of the decree
  • Substantial loss is the cornerstone for granting stay; where cancellation of title would render an appeal moot, the balance tilts in favour of the applicant

Court orders

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  1. 1.There shall be stay of execution of the judgment/decree dated July 7, 2022 in Tigania PM ELC No 68 of 2019 pending hearing and determination of this appeal
  2. 2.The stay is granted on condition that the applicant shall deposit the sum of Kshs 50,000/= in court as security within thirty (30) days from the date hereof, in default the conditional stay of execution shall automatically lapse
  3. 3.Costs of the application are awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (sub rules 1 and 2); Order XLI Rule 4(2)(b)

Cases cited (5)

  • Butt Vs Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Limited vs Benjamin Karuga Kigibu & Ruth Wairimu Karagu
    (1982 - 1988) KAR 1018
  • Macharia T/A Macharia & Co. Advocates Vs East African Standard (No 2)
    (2002) eKLR 63
  • Absalom Dora Vs Turbo Transporters
    (2013) eKLR
  • Geoffrey Muriungi & another Vs John Rukunga M'Imonyo suing as legal representative of the estate of Kinoti Simon Rukunga (deceased)
    [2016] eKLR
On appeal from
Principal Magistrate's Court, Tigania
Tigania PM ELC No 68 of 2019
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, "Maore v Munjuri (Environment and Land Appeal E038 of 2022) [2023] KEELC 727 (KLR)", Case Analysis (2023). Environment and Land Appeal E038 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/727/eng@2023-02-15

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