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ELCPartially AllowedEnvironment & Land Case 205 of 2019· [2023] KEELC 16928 (KLR)

Mulli v Mulli

Environment and Land Court
13 April 2023
EWE. K. Wabwoto
1,573 words in judgment
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The bottom line

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The Environment and Land Court paused enforcement of a land judgment until the appeal is decided, because immediate eviction would make the appeal pointless.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined the Defendant's Notice of Motion dated February 10, 2023 seeking stay of execution of the judgment and decree delivered on January 19, 2023, pending her appeal to the Court of Appeal. The Plaintiff opposed through grounds of contention that the threshold for stay had not been met and that no substantial loss was demonstrated. The court framed a single issue: whether the Defendant had met the threshold for stay pending appeal. Applying Order 42 Rule 6(1) and (2) of the Civil Procedure Rules and the guidelines in Butt v Rent Restriction Tribunal, the court identified four conditions: just cause, substantial loss, security, and absence of unreasonable delay. It found the application filed on February 10, 2023, following the January 19, 2023 judgment, involved no unreasonable delay. Relying on Vishram Ravji Halai v Thornton & Turpin and Century Oil Trading Company Ltd v Kenya Shell Ltd, the court held that an applicant must demonstrate, not merely assert, substantial loss, and that filing a Notice of Appeal alone does not warrant stay. However, it found that execution would render the appeal nugatory and granted stay. On security, the court held it unnecessary given the Defendant's occupation of the suit property for over 40 years. The court allowed the application, staying execution of the judgment and decree pending the hearing and determination of the appeal, with each party bearing their own costs of the application.

Key legal issues

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01

Whether the Defendant met the threshold for stay of execution pending appeal

Holding

Yes - the application was filed without unreasonable delay, execution would render the appeal nugatory, and security was unnecessary given the Defendant's long occupation

Reasoning

The court applied Order 42 Rule 6 and the Butt v Rent Restriction Tribunal guidelines. Judgment was delivered on January 19, 2023 and the motion filed on February 10, 2023, showing no unreasonable delay. The Defendant filed a Notice of Appeal. If the Plaintiff executed the decree the appeal would be rendered nugatory. Given the Defendant's occupation of the suit property for over 40 years, security for due performance of the decree was not required at this stage.

p. 3

Legal principles established

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  • Stay pending appeal is a discretionary remedy fettered by conditions including substantial loss, security, no unreasonable delay and just cause
  • A successful litigant is entitled to the fruits of judgment unless exceptional circumstances exist
  • The applicant bears the burden of demonstrating, not merely asserting, substantial loss
  • Filing a Notice of Appeal does not automatically entitle an applicant to stay of execution

Court orders

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  1. 1.An order staying the execution of the Judgment and Decree delivered on January 19, 2023 pending the hearing and determination of the Appeal
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 41 rule 6 (now Order 46 Rule 2)

Cases cited (4)

  • Jajbhay v Cassim
    1939 AD 537-551

    Clean hands maxim: 'no polluted hand shall touch the pure fountains of justice'

  • Vishram Ravji Halai vs Thornton & Turpin
    [1990] KLR 365

    High Court's jurisdiction to grant stay pending appeal is fettered by sufficient cause, substantial loss and security

  • Butt v Rent Restriction Tribunal
    Civil App No Nai 6 of 1979

    Guidelines: stay discretion should not prevent an appeal; stay must be granted so appeal is not rendered nugatory

  • Century Oil Trading Company Ltd v Kenya Shell Limited
    Nairobi (Milimani) HCMCA No 1561 of 2007

    Meaning of substantial loss; financial position of parties relevant to money decrees

Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "Mulli v Mulli", Case Analysis (2023). Environment & Land Case 205 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16928/eng@2023-04-13

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