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ELCAllowedEnvironment and Land Appeal E041 of 2022· [2023] KEELC 16033 (KLR)
Wambua & 6 others v Muchina & Karanja (Suing as Trustee of Uhuru Welfare Association) & 6 others
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·~6 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court paused an eviction, but only because each appellant agreed to deposit Kshs 100,000 in court within 15 days.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Thika (J G Kemei, J) on an application by the seven appellants for stay of execution of a trial court judgment delivered on 21 April 2022. The trial court had ordered each appellant (or pair of appellants jointly) to pay specified sums, ranging from Kshs 211,800 to Kshs 244,600, to the 1st Respondent within 45 days, failing which an eviction order would issue after refund of monies already paid. The applicants argued they faced imminent eviction, that the 1st Respondent had already refunded Kshs 137,800 by bankers cheque, and that without stay their appeal would be rendered nugatory. The 1st Respondent opposed, citing inordinate delay, a similar application pending before the trial court, the applicants' default in paying the decretal sums, and non-compliance with Order 42 rule 6(2)(b). The parties were directed to file written submissions but did not comply. The court framed a single issue: whether the application was merited. Applying Order 42 rule 6 and the principles in Butt v Rent Restriction Tribunal [1982] KLR 417, the court held that only the eviction limb of the decree remained unexecuted, and that the applicants' unchallenged evidence of imminent eviction demonstrated substantial loss. Allowing the application, the court directed each applicant to provide Kshs 100,000 security, to be deposited in court within 15 days, failing which the stay orders would automatically lapse; costs were to be in the cause. The underlying appeal was not determined by this ruling.
Key legal issues
#01
Whether the applicants demonstrated substantial loss to justify stay of execution pending appeal
Holding
Substantial loss was demonstrated; the applicants face imminent eviction, and part one of the decree (payment of sums) has been satisfied, leaving eviction as the remaining executory step.
Reasoning
The court reviewed Order 42 rule 6 conditions and the Butt v Rent Restriction Tribunal principles. It found that only the eviction limb of the decree remained, and the applicants' unchallenged evidence of imminent eviction established substantial loss warranting stay, subject to security.
p. 4
Legal principles established
#- An applicant for stay of execution pending appeal must establish substantial loss, timely filing of the application, and furnishing of security.
Court orders
#- 1.Application allowed on terms that each of the Applicants shall provide Kshs 100,000 for the due performance of the decree, to be deposited in Court within 15 days from the date of the Ruling
- 2.In default of deposit of security within 15 days, the stay orders shall automatically lapse with no further orders of the Court
- 3.Costs shall be in the cause
- On appeal from
- Trial court (magistrates' court)
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules, appellate stay jurisdiction under the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambua & 6 others v Muchina & Karanja (Suing as Trustee of Uhuru Welfare Association) & 6 others", Case Analysis (2023). Environment and Land Appeal E041 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16033/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.