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ELCAllowedEnvironment and Land Appeal E034 of 2022· [2023] KEELC 20368 (KLR)

Nzioka v Ramu & another

Environment and Land Court
4 October 2023
COChristine A Ochieng
1,694 words in judgment
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The bottom line

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A Kenyan court paused the transfer of disputed land until an appeal is decided, because executing it first would make the appeal pointless.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (CA Ochieng, J) on the appellant Bernard Nzioka's Notice of Motion dated 3 October 2022 seeking stay of execution of the judgment and decree of 25 August 2022 in Mavoko CMELC No. 73 of 2019 (Alice Ramu v NSSF Board of Trustees & Bernard Nzioka), pending his appeal in Machakos ELC Appeal No. E034 of 2022. The trial court had found the 1st respondent the rightful owner of LR No. 18064/30, ordered the 2nd respondent (NSSF Board of Trustees) to transfer the suit property to her, granted a permanent injunction against the appellant and 2nd respondent, and awarded costs. The appellant argued he was allocated the suit property by the 2nd respondent and paid full consideration, that transfer would render his appeal nugatory, and that he had an arguable appeal. The 1st respondent opposed, contending the application was vague, defective and an abuse of process, that the orders were negative and not capable of being stayed, and that no irreparable harm was shown; the 2nd respondent did not oppose. The court framed a single issue: whether stay of execution should issue pending appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and associating itself with Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court found the appeal arguable and that transfer of the property would cause substantial loss and render the appeal nugatory. The application was allowed; execution of the trial judgment and consequential orders was stayed pending the appeal, with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether the appellant satisfied the Order 42 Rule 6(2) threshold for stay of execution pending appeal

Holding

The court found the appellant had an arguable appeal and would suffer substantial loss if the suit property were transferred, rendering the appeal nugatory; the application was allowed.

Reasoning

Both the appellant and 1st respondent paid for their respective parcels and were allocated plots by the 2nd respondent; the real dispute was the location of each plot. Transferring the suit property to the 1st respondent before the appeal would irreparably affect the essential core of the appeal. The 2nd respondent did not oppose the stay, and the application was filed without unreasonable delay.

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security as ordered by the court under Order 42 Rule 6(2).
  • A stay should be granted so that an appeal is not rendered nugatory.

Court orders

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  1. 1.That the execution of the trial Court's Judgment dated the 25th August, 2022 as well as consequential orders thereto be and are hereby stayed pending the hearing and determination of this Appeal.
  2. 2.Costs will abide the outcome of this Appeal.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (6)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417

    A stay must be granted so an appeal is not rendered nugatory; a judge should not refuse a stay where good grounds exist.

  • Nicholas Stephen Okaka & Another V Alfred Waga Wesonga
    (2022) eKLR

    cited in approval of James Wangalwa & Another Vs Agnes Naliaka Cheseto on stay principles

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

    Applicant must show execution will irreparably affect or negate the very essential core of the applicant as a successful party.

  • RWW v EKW
    (2019) eKLR

    cited in Peter Nakupang Lowar V Nautu Lowar on stay principles

  • Peter Nakupang Lowar V Nautu Lowar
    (2022) eKLR

    relied on by the appellant for stay principles

  • Charles Kariuki Njuri V Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru – deceased
    (2020) eKLR

    relied on by the appellant for stay principles

On appeal from
Mavoko Magistrates' Court (CMELC)
Mavoko CMELC No. 73 of 2019
Jurisdiction invoked
Order 42 Rule 6(2) 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, "Nzioka v Ramu & another", Case Analysis (2023). Environment and Land Appeal E034 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20368/eng@2023-10-04

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