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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application for stay of execution was properly brought before the ELC rather than the Court of Appeal under Rule 5(2)(b)
The application was properly before the ELC under Order 42 Rule 6(1) of the Civil Procedure Rules.
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.
Whether the Applicant demonstrated substantial loss to justify a stay
No substantial loss was demonstrated; demolition of the shop was unsupported by evidence, and possession can revert if the appeal succeeds.
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.
Whether the security offered (title deeds) was sufficient
The title deeds offered were insufficient security.
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.
Legal principles established
#- 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
#- 1.The application dated 9th October 2023 (Notice of Motion dated 9th February 2023) is dismissed
- 2.Costs of the application to the 1st Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.