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ELCPartially AllowedNot stated on the face of the judgment (appeal against Voi MCELC NO. E040 of 2021)· [2024] KEELC 123 (KLR)

Mwakaba & another v Kimbio (Environment and Land Appeal E005 of 2023) [2024] KEELC 123 (KLR)

Environment and Land Court
23 January 2024
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Voi stopped an eviction because executing the judgment first would have made the occupants' appeal pointless.

What this practically means

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Executive summary

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This was a notice of motion dated 10th November 2023 brought under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act seeking stay of execution of a judgment delivered on 30th October 2023 in Voi MCELC No. E040 of 2021 (Thomas Wandeto Kimbio vs Kelvin Mwakaba and Bethuel Nguta), pending the hearing and determination of an appeal. The trial court had allowed the respondent's claim, issuing a permanent injunction and an eviction order requiring the applicants/appellants to vacate the suit property on or before 30th December 2023, with a sixty-day stay granted by the trial court. The applicants, who had lived on the property with their families since 2013 and had filed an appeal, argued they would suffer irreparable harm and be rendered destitute if evicted. N.A. Matheka, J. set out the Order 42 rule 6 conditions - substantial loss, absence of unreasonable delay and furnishing of security - and the settled principles that an intended appeal must be arguable and not rendered nugatory, drawing on Reliance Bank vs Norlake Investments, Chris Munga N. Bichange, Mohamed Salim and Carter & Sons Ltd. The court found the application was made without unreasonable delay, that refusal would render the appeal nugatory as the appellants would have been evicted, and that the applicants had fulfilled the grounds for stay. The court granted prayer 3 - stay of execution pending the hearing and determination of the appeal - with costs in the cause. Judgment dated, signed and delivered electronically on 23rd January 2024.

Key legal issues

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01

Whether the applicants satisfied the conditions for grant of stay of execution pending appeal

Holding

The application was made without unreasonable delay, and refusal of stay would render the appeal nugatory since the appellants would have been evicted; the applicants fulfilled the grounds for grant of stay.

Reasoning

The court examined the record and found that the trial court's judgment of 30th October 2023 allowed the respondent's claim, issuing a permanent injunction and eviction order with vacation by 30th December 2023. Applying Order 42 rule 6 conditions and the arguability/nugatory principles, the judge found no unreasonable delay, found that eviction before the appeal would render it nugatory since the appellants had lived on the property with their families since 2013, and concluded the applicants had fulfilled the grounds enabling the grant of stay.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, absence of unreasonable delay and furnishing of security under Order 42 rule 6
  • An applicant must demonstrate that the appeal is arguable and that, if successful, it would be rendered nugatory without stay

Court orders

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  1. 1.Stay of execution of the court's judgment dated 30th October 2023 and any other consequential orders and/or decree thereto pending the hearing and determination of the appeal (prayer 3 of the Notice of Motion dated 10th November 2023)
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and Order 42 rule 6
  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3 and 3A

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange vs Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
On appeal from
Magistrates' Court (Voi)
MCELC NO. E040 of 2021 (Thomas Wandeto Kimbio vs Kelvin Mwakaba and Bethuel Nguta)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya

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, "Mwakaba & another v Kimbio (Environment and Land Appeal E005 of 2023) [2024] KEELC 123 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (appeal against Voi MCELC NO. E040 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/123/eng@2024-01-23

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