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ELCDismissedEnvironment and Land Appeal E7 of 2021· [2023] KEELC 21439 (KLR)

Mathai v Chiuri s/o Mathai

Environment and Land Court
10 November 2023
JOJ. O. Olola
1,334 words in judgment
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The bottom line

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A Kenyan land court refused to pause enforcement of a judgment because the appellant showed no real harm and filed his appeal too late.

What this practically means

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Executive summary

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This is a ruling by J. O. Olola, J of the Environment and Land Court at Nyeri on a Notice of Motion dated 3rd March 2023 by Francis Mundia Mathai (Appellant) seeking a stay of execution of the judgment and decree of 19th November 2020 (as amended on 17th October 2022) in Karatina ELC Case No. 32 of 2018, pending the hearing and determination of his appeal. The Appellant argued the Respondent had begun fencing off the land, restricting his use and occupation, and that unless a stay issued, the application and appeal would be rendered nugatory and he would suffer immense and irreparable loss. The Respondent opposed, averring he had sub-divided the land before the lower court suit was filed, that all parties occupied their respective portions, that the fence predated the suit, and that the appeal was incompetent, having been filed after the statutory period without extension of time. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities Kenya Shell Limited v Kibiru and Nduhiu Gitahi & Another v Anna Wambui Warugongo, holding that the Appellant had not demonstrated substantial loss and that the trial court's orders could not be executed in a manner causing irreparable loss. The court further found no competent appeal was in place, judgment having been delivered on 19th November 2020 with no appeal lodged until some three months later. The Motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether substantial loss was established for a stay of execution under Order 42 Rule 6(2)

Holding

The court was not persuaded that the Appellant's situation could lead to substantial loss; the trial court's orders could not be executed in a manner causing irreparable loss to either party.

Reasoning

The Appellant alleged the Respondent was fencing off the land and denying him access, rendering the appeal nugatory. The Respondent denied taking any action, asserting the fence predated the suit. The court found the depicted situation incapable of producing substantial or irreparable loss, so the first condition of Order 42 Rule 6(2) failed.

p. 3
02

Whether a competent appeal existed to anchor the stay application

Holding

No competent appeal was in place; judgment was delivered on 19th November 2020 but no appeal was lodged until about three months later, beyond the statutory period without extension of time.

Reasoning

The court observed that judgment was rendered on 19th November 2020 and no appeal was lodged until some three months later on 22nd February 2021. The Respondent had argued the appeal was filed after the statutory period expired without extension of time. The court found the stay application could not be anchored on an incompetent appeal.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone for granting a stay of execution; without evidence of it, a stay should not issue
  • In stay applications the court must balance the right of appeal against the decree-holder's right to enjoy the fruits of the judgment, holding the ring even-handedly

Court orders

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  1. 1.The Notice of Motion dated 3rd March 2023 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (2)

  • Kenya Shell Limited v Kibiru
    (1986) KLR 410

    Substantial loss is the cornerstone for granting a stay; without evidence of substantial loss a stay should not issue.

  • Nduhiu Gitahi & Another v Anna Wambui Warugongo
    (1988) 2 KLR

    Court must preserve the rights of both parties pending appeal and hold the ring even-handedly.

On appeal from
Karatina Magistrates Court
Karatina ELC Case No. 32 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court; application under Order 42 Rule 6(2) of the Civil Procedure 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, "Mathai v Chiuri s/o Mathai", Case Analysis (2023). Environment and Land Appeal E7 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21439/eng@2023-11-10

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