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ELCDismissedEnvironment and Land Appeal 85 of 2022· [2023] KEELC 17524 (KLR)

Kiriinya v Kiriinya

Environment and Land Court at Meru
17 May 2023
CNC.K. Nzili
536 words in judgment
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The bottom line

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The Environment and Land Court at Meru refused to pause execution of a land judgment because the appellant delayed, showed no real loss, and offered no 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 an application dated February 24, 2023 by the appellant, Japhet Murithi Kiriinya, seeking a stay of execution of a decree dated May 9, 2022 pending the hearing and determination of his appeal against a judgment rendered on December 9, 2022. The applicant argued that the primary court's judgment was grossly unfair, that he had lived on the locus in quo for a long time, that eviction would render the appeal nugatory despite its high chance of success, and that no prejudice would befall the respondent. The application was served but not opposed; a return of service was filed on March 22, 2023. The court restated the settled conditions for stay: filing without unreasonable delay, demonstration of substantial loss, offer of security for due realization of the decree, and the interest of justice, citing Butt v Rent Restriction Tribunal and James Wangalwa v Naliaka Cheseto. The court found the delay in filing the application unexplained, no decree or notice of eviction exhibited to show execution was underway, no demonstration of developments or loss that would not be compensable or would change the substratum of the appeal, and no security offered. Applying Wangalwa, mere execution does not constitute substantial loss. The court held it was not in the interest of justice to grant the orders sought, dismissed the application with costs, directed that the lower court file be availed, and fixed mention before the Deputy Registrar on June 8, 2023.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution pending appeal

Holding

The applicant failed: delay was unexplained, substantial loss was not demonstrated, no security was offered, and the orders were not in the interest of justice

Reasoning

The judgment was delivered on December 9, 2022, the appeal filed December 22, 2022, but the stay application only on February 24, 2023, with no explanation for the delay. No decree or notice of eviction was exhibited to show execution was underway. The applicant did not show what developments on the land would be irrecoverable if evicted, nor offer security for satisfaction of the decree.

p. 1

Legal principles established

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  • An applicant for stay of execution must file without unreasonable delay, show substantial loss, offer security for due realization of the decree, and demonstrate that the orders are in the interest of justice
  • The execution process alone does not amount to substantial loss; the applicant must show other vitiating factors which would interfere with the essential core of the appeal

Court orders

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  1. 1.The application dated February 24, 2023 is dismissed with costs
  2. 2.Lower court file to be availed
  3. 3.Mention before the Deputy Registrar on June 8, 2023

Authorities

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Cases cited (2)

  • Butt v Rent Restriction Tribunal
    (1979) eKLR

    Conditions for grant of stay of execution

  • James Wangalwa v Naliaka Cheseto
    (2020) eKLR

    Execution process alone does not amount to substantial loss; other vitiating factors must be shown

Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts; stay of execution pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kiriinya v Kiriinya", Case Analysis (2023). Environment and Land Appeal 85 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17524/eng@2023-05-17

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