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ELCPartially AllowedEnvironment & Land Case 988 of 2014· [2023] KEELC 17050 (KLR)

Marubu & another v Mathenge & 3 others (Sued on their own behalf and on behalf of All other occupants of the suit premises)

Environment and Land Court
20 April 2023
LMLucy N Mbugua
686 words in judgment
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The bottom line

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A Nairobi court gave landowners four months of protection from eviction while their appeal continues, but refused an open-ended stay.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (LN Mbugua, J) determines a notice of motion dated February 6, 2023 by the plaintiffs, Robert Ng'ang'a Marubu and Caroline Murugi, seeking a stay of execution of the judgment delivered on October 27, 2022 pending appeal. In that judgment the plaintiffs' claim for, inter alia, eviction of the defendants from land parcels LR 209/4401/384, 385 and 390 was dismissed, while the defendants' counterclaim on adverse possession was allowed. The applicants contended that the 30-day stay granted at the time of judgment had lapsed and that unless a further stay was granted, the suit parcels would be registered in the defendants' names, occasioning substantial loss of time and money in recovering them. The 2nd defendant, Julius Mboya Munyora, opposed, arguing the applicants failed to move promptly after the 30-day stay lapsed, showing lack of good faith. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the authorities confirming that stay is discretionary but must be exercised judiciously. Finding that the applicants delayed in filing the application but had duly filed the notice of appeal, lodged the appeal and served the record of appeal, the court balanced the parties' interests and granted a stay of execution for four months from the date of the ruling, with the applicants to bear the costs of the application.

Key legal issues

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01

Entitlement to stay of execution pending appeal under Order 42 Rule 6

Holding

Stay granted but limited to four months despite the applicants' delay, because they had filed notice of appeal, lodged the appeal and served the record of appeal

Reasoning

The court applied Order 42 Rule 6 of the Civil Procedure Rules and the discretionary principles in the cited authorities. Although the applicants delayed in filing the application after the lapse of the 30-day stay granted at judgment, they had diligently pursued the appeal itself. Weighing the competing interests of the parties and the passage of about half a year since judgment, the court granted a time-limited stay of four months.

Legal principles established

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  • Stay of execution pending appeal is a discretionary relief which must be exercised judiciously
  • Courts must balance competing rights and interests of different parties within the confines of the law

Court orders

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  1. 1.Stay of execution of the judgment delivered on October 27, 2022 granted for a period of 4 (four) months from the date of delivery of the ruling
  2. 2.Applicants to meet the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(4)

Cases cited (3)

  • Loice Khachendi Onyango v Alex Inyangu & another
    [2017] eKLR

    Stay of execution is discretionary but must be exercised judiciously

  • Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 others
    [2013] eKLR

    Cited Equity Bank Ltd v West Link MBO Ltd on balancing competing interests

  • Equity Bank Ltd. v West Link MBO Ltd
    Civil Application No. 78 of 2011

    Courts must balance competing rights and interests within the confines of the law

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, "Marubu & another v Mathenge & 3 others (Sued on their own behalf and on behalf of All other occupants of the suit premises)", Case Analysis (2023). Environment & Land Case 988 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17050/eng@2023-04-20

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