Msechu v Kamau

Environment and Land Court of Kenya

27 July 2023

ADA.E. Dena

2,395 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~10 min to read original · ~4 min brief

The bottom line

A Kenyan landowner lost her bid to pause execution of a judgment because she only said she lived on the land without proving real loss.

What this practically means

Executive summary

This is a ruling by A.E. Dena, J of the Environment and Land Court at Kwale on a Notice of Motion dated 22 February 2023 by the plaintiff, Agneta Masha Msechu, seeking a temporary and pending-appeal stay of execution of the court's own judgment of 8 February 2023, which had dismissed her suit for recovery of parcels Kwale/Galu Kinondo/1258 and 1259 with costs. The applicant, who has appealed, argued under Order 42 rule 6 of the Civil Procedure Rules that she filed the application timeously (14 days after judgment), that the land is her residence and serves as security so no further security was needed, and that the substratum of the case - her title - would be destroyed. She relied on Catherine Matei Chena v Pradeep Harish Hindocha. The respondent countered that the application was an abuse of process, that no intention to execute had been shown, that substantial loss was unproved, and that security under Order 42 rule 6 is mandatory, citing Nicholus Stephen Okaka v Alfred Waga Wesonga. The court framed a single issue: whether the applicant demonstrated that stay was merited. Applying Samvir Trustee, Sammy Some Kosgei, James Wangalwa and Charles Wahome Gethi, it held that substantial loss is the epicentre of a stay application and must be evidenced, not merely asserted. The applicant's bare claim that she lived on the land with nowhere else to go, without explanation or supporting evidence, failed. Her remaining depositions went to grounds of appeal, not substantial loss. The court also declined to assess the merits of the appeal against its own judgment, and found it unnecessary to decide security, though it found the application timely. The motion was dismissed with costs to the respondent.

Key legal issues

Whether the applicant demonstrated substantial loss under Order 42 rule 6(2)

Holding

The applicant failed to establish substantial loss; her assertion that she lives on the land with nowhere else to go was unsupported by evidence or explanation.

Reasoning

The court applied Order 42 rule 6(2) and case law holding that substantial loss is the epicentre of a stay application and must be proved with empirical or documentary evidence. The applicant's bare averment that she resided on the property and had no other place to go was 'glossed over' without explanation, and her other depositions went to grounds of appeal, not substantial loss.

p. 4

Timeliness of the application

Holding

The application was filed without unreasonable delay; the Notice of Appeal was filed within the prescribed 14 days.

Reasoning

The court found the application was filed 14 days after judgment and the Notice of Appeal within the prescribed period, so the delay limb of Order 42 rule 6(2) was satisfied, though this alone could not save the application given failure on substantial loss.

Whether the court could consider the merits of the intended appeal

Holding

No; a court cannot entertain submissions on the merits of an appeal against its own judgment; that is for the appellate court.

Reasoning

The judge declined to dwell on submissions about the merits of the appeal, reasoning that a trial court should not cast doubt on its own judgment. Arguability of the appeal can only be raised when a stay application is made at the Court of Appeal level.

p. 2

Legal principles established

Substantial loss is the main criterion in applications for stay of execution pending appeal and must be demonstrated with evidence, not mere assertion.
A bare statement that an applicant resides on suit land without evidence or compelling explanation does not establish substantial loss.
A first-instance court should not consider the merits or arguability of an appeal against its own judgment when ruling on stay.

Court orders

1.The Notice of Motion dated 22/2/2023 is dismissed with costs to the respondent

Authorities

Legislation

Civil Procedure RulesOrder 42 rule 6 (including rule 6(2))

Cases cited (8)

Catherine Matei Chena v Pradeep Harish Hindocha
Eldoret CA No 69 of 2020
Court of Appeal allowed a stay pending appeal without conditions
Nicholus Stephen Okaka & another v Alfred Waga Wesonga
[2022] eKLR
Court must balance the interests of all parties in stay applications
Cosmas Cherono & 2 others v Veronicah Cherono
[2022] eKLR
Citing Samvir Trustee on need for evidence of substantial loss
Samvir Trustee Limited v Guardian Bank Limited
[2007] eKLR
Substantial loss must be supported by empirical or documentary evidence, not mere assertions
Sammy Some Kosgei v Grace Jelel Boit
[2013] eKLR
Substantial loss is the epicentre of a stay application; without it the application fails
Machira t/a Machira & Co v East African Standard
No.2 (2002) 2 KLR 63
Particulars of substantial loss must be given and the court's conscience satisfied that loss will really ensue
James Wangalwa & Another v Agnes Naliaka Cheseto
[2012] eKLR
Execution being put in motion does not by itself amount to substantial loss
Charles Wahome Gethi v Angela Wairimu Gethi
(2008) eKLR
Residence on suit land alone does not show substantial loss

Jurisdiction invoked: Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Msechu v Kamau", Case Analysis (2023). Environment & Land Case 46 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19140/eng@2023-07-27

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