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ELCPartially AllowedNot stated in judgment· [2023] KEELC 779 (KLR)

Rufus & another v Kirima (Environment & Land Case 95 of 2013) [2023] KEELC 779 (KLR)

Environment and Land Court
15 February 2023
CNC.K. NZILI
1,460 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 owner who wants to pause a court judgment must prove real, evidenced loss — simply claiming you live on the land is not enough.

What this practically means

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Executive summary

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The applicant, George Kirima Mugambi, through Meenye Kirima Advocates, sought leave to come on record and a stay of execution of a judgment delivered on July 13, 2022, pending an intended appeal to the Court of Appeal, having filed a notice of appeal. He relied on Order 42 Rule 6 of the Civil Procedure Rules, contending he and his family occupied the suit land which he had extensively developed, that the land was unique and not compensable in damages, that the application was filed timeously, and that he was ready to provide reasonable security. The respondent, Martin Koome Kiambati, opposed, arguing the suit had already been determined in a judgment of November 14, 2018, that the applicant was a vexatious litigant who had not occupied but leased out the land, and that no substantial loss would result. In submissions, the applicant relied on authorities on substantial loss and security, while the respondent relied on authorities requiring demonstration of loss rendering the appeal nugatory. The court found the application was filed within 14 days of judgment, satisfying the timeliness condition. However, it held the applicant failed to demonstrate substantial loss: the supporting affidavit did not state occupation by the applicant and family, and lacked particulars of developments, valuation reports, photographs, or evidence that execution had commenced. Written submissions could not replace evidence. On security, the applicant neither defined special circumstances nor proposed any security. The court granted leave to come on record but dismissed the stay application with costs, applying Sections 1A, 1B and 3A of the Civil Procedure Act.

Key legal issues

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01

Substantial loss

Holding

Not demonstrated; applicant did not prove occupation or give particulars of developments or estimated loss

Reasoning

The supporting affidavit only alleged that the respondent would dispose of the property, without stating occupation by the applicant and family or particulars of developments. No photographs, valuation reports or evidence of execution were provided; the respondent swore the land was leased to third parties.

p. 2
02

Timeliness

Holding

Application filed within 14 days of judgment, satisfying the reasonable delay condition

Reasoning

The court found the application was filed within 14 days of the judgment of July 13, 2022, meeting the first condition under Order 42 Rule 6.

p. 2
03

Security

Holding

Applicant failed to define unique circumstances excusing security or suggest the nature of security

Reasoning

The applicant gave no particulars of special circumstances justifying waiver of security and did not propose any security, nor guarantee non-interference with the land. Security's purpose is not punitive but binds the applicant as a judgment debt.

p. 3

Legal principles established

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  • An applicant for stay must demonstrate substantial loss with tangible and cogent evidence; mere assertion of residence or occupation is insufficient
  • Written submissions cannot replace evidence or amount to pleadings

Court orders

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  1. 1.Leave granted to Meenye Kirima Advocates to come on record for the applicant
  2. 2.Application for stay of execution dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (12)

  • Antoine Ndiaye vs African Virtual University
    (2015) eKLR
  • John Gachanja Mundia vs Francis Muriira alias Francis Muthika & another
    (2016) eKLR
  • RWW vs EKW
    (2019) eKLR
  • Rose Njiru vs Nicholas Muthuri
    (2019) eKLR
  • Consolidated Marine vs Nampijja and another
    Civil App No 93 of 1989 (Nairobi)
  • Mukuma vs Abuoga
    (1988) KLR 645
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    (2008) eKLR
  • Kenya Shell Ltd vs Kibiru & another
    (1986) KLR 410
  • Machira t/a Machira & Co Advocates, Aron C Sharma vs Ashana Raikundalia t/a Rairundalia & Co Advocate
  • Butt vs Rent Restriction's Tribunal
    (1982) KLR 417
  • James Wangalwa & another vs Agnes Cheseto
    (2013) eKLR
  • Machira t/a Machira Co advocates vs East African Standard
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

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, "Rufus & another v Kirima (Environment & Land Case 95 of 2013) [2023] KEELC 779 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/779/eng@2023-02-15

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