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ELCDismissedEnvironment & Land Case 196 of 2014· [2023] KEELC 21388 (KLR)

Kaunda v Wambua

Environment and Land Court
8 November 2023
COChristine A Ochieng
1,931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court refused to pause enforcement of a land ruling because the applicant waited five years and had already sold part of the property.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Ochieng, J) determined the Defendant/Applicant's Notice of Motion dated November 4, 2022 seeking stay of execution of the ex parte judgment of January 27, 2017 (issued May 18, 2017) pending the hearing and determination of his appeal, Nairobi Court of Appeal Civil Appeal No. 438 of 2018, filed December 14, 2018. The Applicant argued that his appeal raised the fundamental question whether division of matrimonial property can be ordered before dissolution of the marriage and in the absence of a spouse, and that enforcement before the appeal was determined would be unjust. The Plaintiff/Respondent opposed, contending the application was vexatious and actuated by malice, that the Applicant had sold a portion of Plot No. 887 'A' to third parties in disregard of the court order, that he was guilty of laches, and that no substantial loss or security was demonstrated. The court framed a single issue: whether the Applicant was entitled to stay of execution pending appeal. Applying Order 42 rule 6(2) of the Civil Procedure Rules, Rule 5(2)(b) of the Court of Appeal Rules, and the principles in Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court held the Applicant would suffer no substantial loss since he remains the registered owner with titles in his custody while the Respondent was declared beneficial owner and resides on the properties. The court also found the Applicant lacked candour, having sought stay five years later after disposing of part of the suit property. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2)

Holding

No - the Applicant will suffer no substantial loss as he remains registered owner with titles in his custody, the application was made five years after the order, and no security was furnished

Reasoning

The court applied Order 42 rule 6(2) and the Butt v Rent Restriction Tribunal discretion principles. It found the Applicant is the registered owner of the suit properties while the Respondent was declared beneficial owner and resides there, so no substantial loss would result. The five-year delay and the Applicant's sale of a portion of Plot No. 887 'A' in disregard of the order demonstrated lack of candour and disentitled him to the discretionary relief.

Legal principles established

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  • Execution is a lawful process and does not by itself amount to substantial loss; the applicant must show execution will irreparably affect the essential core of his appeal
  • Stay of execution pending appeal requires substantial loss, application without unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.The Applicant's Notice of Motion Application dated November 4, 2022 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules; Rule 5(2)(b) of the Court of Appeal Rules

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, "Kaunda v Wambua", Case Analysis (2023). Environment & Land Case 196 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21388/eng@2023-11-08

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