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ELCPartially AllowedEnvironment and Land Appeal E083 of 2022· [2023] KEELC 16490 (KLR)

Muriuki v M’Ichoro & another

Environment and Land Court
22 March 2023
1,089 words in judgment
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The bottom line

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A Kenyan landowner won a six-month pause on a court judgment being enforced, but only because she filed quickly, proved her loss, and offered security.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Meru (C.K. Nzili, J) on a notice of motion dated January 16, 2023 in which the appellant, Tabitha Kagwiria Muriuki, sought stay of execution of a judgment delivered on December 13, 2022 by the trial court, which had dismissed her counterclaim and allowed the 1st respondent's claim over suit land. The appellant argued she had purchased a portion of the land in 1985, taken vacant possession and built permanent structures, and would suffer substantial loss including loss of rental income if the developments were demolished, and offered security. The 1st respondent opposed, contending the decree had already been executed by excising a road of access after the 21-day stay expired, that the applicant had encroached on a public road, and that the appeal was academic. The court restated the Order 42 Rule 6 conditions: timeliness, substantial loss, security, and the interest of justice, drawing on the cited case law. It found no inordinate delay since the application was filed before the lower court's stay expired; found substantial loss demonstrated by particulars of developments and an undisputed valuation report; noted the respondent had not proved when or how the decree was executed; and accepted the undertaking as to damages as sufficient security. The application was allowed, with stay limited to six months and the lower court file to be availed.

Key legal issues

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01

Timeliness of the stay application

Holding

No inordinate delay; application filed January 16, 2023 after December 13, 2022 judgment, with lower court stay expiring January 24, 2023

Reasoning

The court measured the interval between judgment and the stay application against the lower court's stay period. Since the application was filed before the expiry of the lower court's 21-day stay, the applicant came to court without inordinate delay, satisfying the first condition for stay under Order 42 Rule 6.

02

Substantial loss

Holding

Substantial loss demonstrated by particulars of developments and an undisputed valuation report; respondent failed to prove execution of the decree

Reasoning

The applicant particularised her developments and attached a valuation report whose contents the respondent did not dispute. The respondent alleged the decree had been executed by excising a road but filed no reports from the land registrar or surveyor showing when and how execution occurred, so the loss claim stood uncontradicted.

p. 2
03

Security for due performance

Holding

Applicant's willingness to offer security plus the filed undertaking as to damages sufficed

Reasoning

The applicant expressed willingness to offer security for due performance of the decree. The court accepted the undertaking as to damages already filed as sufficient security, consistent with the principle that security serves to guarantee the decree rather than punish the applicant.

Legal principles established

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  • A stay application must be filed timeously, demonstrate substantial loss, offer security, and be in the interest of justice
  • Execution under a decree does not by itself amount to substantial loss; the applicant must show irreparable effect on the core of the appeal
  • The purpose of security is not to punish the applicant but to secure the decree, since a decree is like a debt

Court orders

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  1. 1.Application for stay of execution pending appeal allowed
  2. 2.The undertaking as to damages filed constitutes sufficient security
  3. 3.Stay orders to subsist for a period of six months only
  4. 4.Lower court file to be availed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (9)

  • Halal and another v Thorton & Turpin Ltd
    (1993) eKLR

    Requirements for stay of execution pending appeal

  • Elena Doudaladova Korir v Kenyatta University
    (2012) eKLR

    Stay of execution principles

  • Republic v County Government of Kiambu and another exparte Kiambu Farmers Choice Ltd
    (2021) eKLR

    Execution not amounting to substantial loss; need to preserve status quo

  • Focin Motorcycle Co. Ltd v Ann Wambui Wangui & another
    (2018) eKLR

    Security for due performance of decree

  • Mutegi Mugwewa v County Ministry of Lands; Physical Planning Energy and ICT County Government of Tharaka Nithi & 4 others
    (2017) eKLR

    Discretionary nature of stay power; cited Butt v Rent Restrictions Tribunal

  • Butt v Rent Restrictions Tribunal
    (1983) KLR 417

    Stay power is discretionary to avoid rendering appeal nugatory

  • Bake "N" Bitu (NRB) Ltd v Daniel Mutisya Mwalonzi
    (2015) eKLR

    Onus on applicant to prove special circumstances

  • James Wangalwa and another v Agnes Naliaka Cheseto
    (2012) eKLR

    Execution alone is not substantial loss

  • Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co advocates & 4 others
    (2014) eKLR

    Purpose of security is not to punish the applicant

On appeal from
Magistrates' Court (trial court)
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, "Muriuki v M’Ichoro & another", Case Analysis (2023). Environment and Land Appeal E083 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16490/eng@2023-03-22

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