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ELCDismissedNotice of Motion dated 9th February 2023 (arising from Mwingi SRMCC No. 56 of 2002; appeal judgment delivered 3rd October 2023)· [2024] KEELC 238 (KLR)

Kasimu v Kasimu (Represented by Collins Musyimi Muthangya as administrator of the Estate of the John Muthanga Kasimu) & another (Environment and Land Appeal 37 of 2021) [2024] KEELC 238 (KLR)

Environment and Land Court
23 January 2024
3,224 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Kitui refused to pause execution of a 21-year-old land judgment, ruling the appellant offered no evidence of real loss.

What this practically means

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Executive summary

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The Appellant, who lost his appeal before the Environment and Land Court at Kitui on 3rd October 2023 against the judgment of the Senior Principal Magistrate at Mwingi in Mwingi SRMCC No. 56 of 2002, moved the Court for a stay of execution pending an intended appeal to the Court of Appeal. He argued that execution would demolish the shop premises on which he runs a hotel, his sole livelihood at an advanced age, rendering the appeal nugatory, and offered title deeds to two parcels (Migwani/Kyamboo/2014 and Migwani/Kyamboo/1716) already deposited in court as security. The 1st Respondent, the judgment creditor entitled to vacant possession of Plot 15A, opposed the application, contending that the Applicant had abused previous stay orders, continued occupying the property and collecting rent for over 21 years, and that the proper forum was the Court of Appeal under Rule 5(2)(b). The court first held the application properly before it under Order 42 Rule 6(1). Applying Butt v Rent Restriction Tribunal and related authorities, it found no substantial loss demonstrated: the demolition claim lacked evidentiary support, the hotel could relocate, and possession could revert if the appeal succeeded. The title deeds offered were insufficient security, and a rent-deposit alternative was impracticable since rental income was never quantified. Balancing the Applicant's right of appeal against the Respondent's right to the fruits of his judgment after more than two decades, the court dismissed the application with costs to the 1st Respondent.

Key legal issues

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01

Whether the application for stay of execution was properly brought before the ELC rather than the Court of Appeal under Rule 5(2)(b)

Holding

The application was properly before the ELC under Order 42 Rule 6(1) of the Civil Procedure Rules.

Reasoning

Order 42 Rule 6(1) permits the court to which an appeal is preferred to consider an application for stay whether or not the court appealed from granted or refused it. The application sought stay of the trial court's decree as upheld by the ELC, which the ELC could address. The Respondent's objection that the Applicant should have gone to the Court of Appeal therefore failed.

p. 4
02

Whether the Applicant demonstrated substantial loss to justify a stay

Holding

No substantial loss was demonstrated; demolition of the shop was unsupported by evidence, and possession can revert if the appeal succeeds.

Reasoning

The Applicant alleged his hotel would be demolished and his livelihood lost, but no evidence supported the demolition claim, and the hotel could be relocated. The decree was for vacant possession, which can be restored on successful appeal, so the appeal would not be rendered nugatory. The Respondent had already been kept from the fruits of judgment for over 21 years.

p. 6
03

Whether the security offered (title deeds) was sufficient

Holding

The title deeds offered were insufficient security.

Reasoning

Security is discretionary. The title deeds did not address the Respondent's concern about being kept away from the fruits of judgment while the Applicant continues to benefit from the premises by running a business or collecting rent. A rent-deposit proposal was impracticable because rental income was never quantified with sufficient evidence.

p. 6

Legal principles established

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  • The court to which an appeal is preferred may, under Order 42 Rule 6(1), entertain an application for stay of execution of the decree appealed from even where the application was granted or refused by the court appealed from.
  • Allegations of substantial loss must be supported by evidence; mere assertion by an applicant is insufficient.

Court orders

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  1. 1.The application dated 9th October 2023 (Notice of Motion dated 9th February 2023) is dismissed
  2. 2.Costs of the application to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), Order 42 Rule 6(2), Order 51 Rule 1
  • Court of Appeal RulesRule 5(2)(b), Rule 77

Cases cited (7)

  • Butt vs Rent Restriction Tribunal
    [1979] eKLR
  • Jennifer Akinyi Osodo vs Boniface Okumu Osodo & 3 Others
    (2010) eKLR
  • Peter Maosa Nyang'au vs National Bank of Kenya Ltd & Another
    (2021) eKLR
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Mohammed Salim t/a Choice Butchery vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Portreitz Maternity vs James Karanga Kabia
    Civil Appeal No. 63 of 1991
On appeal from
Senior Resident Magistrate's Court at Mwingi
Mwingi SRMCC No. 56 of 2002
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Kasimu v Kasimu (Represented by Collins Musyimi Muthangya as administrator of the Estate of the John Muthanga Kasimu) & another (Environment and Land Appeal 37 of 2021) [2024] KEELC 238 (KLR)", Case Analysis (2024). Notice of Motion dated 9th February 2023 (arising from Mwingi SRMCC No. 56 of 2002; appeal judgment delivered 3rd October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/238/eng@2024-01-23

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