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ELCAllowedEnvironment and Land Appeal 39 of 2020· [2023] KEELC 18217 (KLR)

Mwakima v Kenya Industrial Estates Ltd & 2 others

Environment and Land Court
22 May 2023
11,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped the auction of a family's only home, ruling that a 12-month delay in seeking a stay was not fatal to the appeal.

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 Mombasa (Naikuni J) on the appellant's Notice of Motion dated 9th September 2021 seeking stay of execution of a judgment of the Principal Magistrate's Court at Voi delivered on 30th November 2020, pending appeal in Environment and Land Appeal 39 of 2020. The 1st Respondent, which had obtained judgment and instructed Cash Crop Auctioneers to execute against L.R. Sagala/Kishamba 'A'/1021, opposed the application on three fronts: that it was res judicata given the trial court's dismissal of a similar application on 25th August 2021; that the appellant had failed to establish substantial loss, undue delay and security under Order 42 Rule 6(2) of the Civil Procedure Rules; and that the appeal was not arguable. The court framed three issues: res judicata, entitlement to stay, and costs. On res judicata, it set out Section 7 of the Civil Procedure Act but found the 1st Respondent had not proved that a similar application seeking the same prayers had been determined by a competent court. On stay, it applied the three Order 42 Rule 6(2) conditions, holding that the roughly twelve-month delay was not unreasonable since the law sets no time limit, that substantial loss was shown because the suit land was the appellant's family's only home and a public auction would render the appeal nugatory, and that the appellant's pledge to deposit the title deed sufficed as security. The application was allowed in its entirety, stay of execution was granted pending the hearing and final determination of the appeal, the matter was fixed for mention on 27th June 2023 for record-filing, admission and directions, and costs of the application were awarded to the appellant against the 1st Respondent.

Key legal issues

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01

Whether the application was res judicata given the earlier dismissed stay application in the trial court

Holding

The court found the 1st Respondent had not proved that a similar application seeking the same prayers had been determined by a court of competent jurisdiction, so res judicata was not established

Reasoning

The court set out Section 7 of the Civil Procedure Act and the Black's Law Dictionary definition, requiring an earlier decision on the issue, a final judgment on the merits and the same parties. It held that only the actual record that the issue was decided upon is relevant. Despite the 1st Respondent's evidence of a ruling of 25th August 2021 dismissing a similar application, the court concluded the doctrine was not proved.

02

Whether the application was made without unreasonable delay

Holding

Although the application was filed about 12 months after judgment, the court held the delay was not unreasonable or inordinate because the law is silent on the actual time limitation

Reasoning

The court noted the judgment was delivered on 30th November 2020 and the application filed on 11th November 2021, a period of about 12 months. It concurred the period sounded prolonged but observed the law sets no actual time limit, and in its view the period was not unreasonable, inordinate nor undue delay.

p. 20
03

Whether the conditions of substantial loss and security were satisfied

Holding

The court found the appellant would suffer substantial loss as the suit land was her only home and a public auction would render the appeal nugatory; the appellant's pledge to deposit the title deed sufficed as security

Reasoning

Applying Order 42 Rule 6(2) and the overriding objective in Sections 1A and 1B of the Civil Procedure Act, the court weighed the consequences of granting or refusing stay, opting for the lower risk of injustice. The appellant's family of over 20 members, including minors, lived on the ancestral land. The appellant pledged to deposit the title deed with the court as security, which the court accepted.

p. 20
04

Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the appellant succeeded and costs were awarded against the 1st Respondent

Reasoning

The court reiterated that costs are at the discretion of the court and that Section 27(1) of the Civil Procedure Act holds that costs follow the event, meaning the outcome of the proceedings. Since the appellant succeeded in the application, the costs were to be borne by the 1st Respondent.

p. 20

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act bars re-litigation of issues directly and substantially in issue in a former suit between the same parties litigating under the same title, heard and finally decided by a competent court
  • The three conditions for stay of execution pending appeal under Order 42 Rule 6(2) are substantial loss, application without unreasonable delay, and furnishing of security
  • The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so the appeal, if successful, is not rendered nugatory

Court orders

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  1. 1.The Notice of Motion application dated 9th September, 2021 be and is hereby found to have merit and is allowed in its entirety
  2. 2.A stay of execution of the Judgment delivered on 30th November, 2020 and all its subsequent Orders do issue pending the hearing and final determination of the Appeal
  3. 3.The matter to be mentioned on 27th June, 2023 for confirming filing of the Record of Appeal, admitting the Appeal and taking directions including the hearing date under Section 79B & G of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules
  4. 4.The costs of the application be borne by the 1st Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1), (2), (3)
  • Civil Procedure Rules, 2010Order 42 Rules 11, 13 and 16
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A
  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Act, Cap 21Section 27(1)
  • Civil Procedure Act, Cap 21Sections 79B & G
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (31)

  • Consolidated Marine v Nampijja & Another
    Civil App No. 93 of 1989

    Purpose of stay is to preserve the subject matter so the appeal is not rendered nugatory

  • Paul Kamura Kirunge v John Peter Nganga

    Adopting the Consolidated Marine principle on preservation of subject matter

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    (2012) eKLR

    Substantial loss is the cornerstone; execution must not negate the core of the applicant's appeal

  • HE v SM
    Civil Appeal no. 20 of 2020

    Stay granted without ordering security; cited by appellant on security discretion

  • Simon Kishanto Kudate v District Land Registrar; Tikoishi Ole Nampaso & another (Interested Parties)
    [2022] eKLR

    Elements of res judicata under Section 7 of the Civil Procedure Act

  • Heritage Insurance Company Limited v Patrick Kasina Kisilu
    (2015) eKLR

    Filing similar applications over the same subject matter is res judicata and an abuse of process

  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others
    [1993] eKLR

    Wider principles of res judicata apply to interlocutory applications within a suit

  • Jamii Bora Bank Limited & another v Samuel Wambugu Ndirangu

    Applicant must clearly state the loss they stand to suffer

  • Shell Ltd v Kibiru and Another
    [1986] KLR 410

    Circumstances when substantial loss arises; without evidence of substantial loss respondents should not be kept out of their money

  • Wilson v Church (No.2)
    (1879) 12 ChD 454

    Stay proper where execution would render a proposed appeal nugatory

  • Machira t/a Machira & Co. Advocates v East African Standard (No. 2)
    (2002) KLR 63

    Applicant must prove specific substantial loss

  • Peter Rugu Gikanga & another v Weston Gitonga & 10 others
    [2014] eKLR

    Merely living on suit land is no ground for stay

  • Charles Wahome Geth v Angela Wa/r/mu Geth
    Court of Appeal Civil Application No. NAI 302 of 2007 UR 205/2007

    Applicants must show the substantial loss they stand to suffer, not merely residence on the land

  • Gianfranco Manenthi & Another v Africa Merchant Assurance Co. Ltd
    [2019] eKLR

    Security for due performance of decree; deposit of decretal amount

  • Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others
    [2014] eKLR

    Purpose of security under Order 42 is to guarantee due performance of the decree, not to punish the judgment debtor

  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others
    [2015] eKLR

    Security must achieve due performance of the entire decree including costs

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR

    Twin conditions: arguable appeal and whether appeal would be rendered nugatory

  • Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another
    [2018] eKLR

    Applicant need only show arguability, not high probability of success

  • Njangu v Wambugu and another
    Nairobi HCCC No.2340 of 1991 (unreported)

    Res judicata prevents endless litigation over the same issue with cosmetic face-lifts

  • Siri Ram Kaura v M.J.E. Morgan
    CA 71/1960 (1961) EA 462

    Fresh evidence on matters open in earlier proceedings is no answer to res judicata

  • Mukuma v Abuoga
    (1988) KLR 645

    Substantial loss is what has to be prevented by preserving the status quo

  • Vishram Ravji Halai v Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365

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

  • Suleiman v Amboseli Resort Limited
    [2004] 2 KLR 589

    Court should opt for the lower rather than the higher risk of injustice

  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997

    Balancing exercise: appeal not rendered nugatory while successful party enjoys fruits of judgment

  • Butt v Rent Restriction Tribunal
    [1979]

    Discretion to grant stay should be exercised so as not to prevent an appeal

  • RWW v EKW
    [2019] eKLR

    Purpose of stay pending appeal; balancing appellant's rights against successful litigant's fruits of judgment

  • Kenya Sugar Board v Ndungu Gathinji
    [2013] eKLR

    Costs follow the event; discretion applied judiciously

  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004

    One bona fide arguable ground suffices

  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 others
    Civil Application No. 124 of 2008

    An arguable appeal need not necessarily succeed

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227

    Meaning of 'nugatory' - worthless, futile, invalid or trifling

  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403

    Onus shifts to respondent to rebut claim that appeal will be rendered nugatory

On appeal from
Principal Magistrate's Court at Voi
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21

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, "Mwakima v Kenya Industrial Estates Ltd & 2 others", Case Analysis (2023). Environment and Land Appeal 39 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18217/eng@2023-05-22

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