Mwakaba & another v Kimbio (Environment and Land Appeal E005 of 2023) [2024] KEELC 123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants satisfied the conditions for grant of stay of execution pending appeal
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.