Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment (Appeal from Mombasa CMCC No. 2198 of 2018)· [2024] KEELC 295 (KLR)

Gumba & 6 others v Abdallah (Environment and Land Appeal E027 of 2023) [2024] KEELC 295 (KLR)

Environment and Land Court
31 January 2024
NMN.A. MATHEKA
1,490 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

#

Kenya's Environment and Land Court in Mombasa stopped an eviction, ruling the occupants' appeal could proceed because eviction first would make the appeal pointless.

What this practically means

#

Executive summary

#
This was a first-instance ruling on a notice of motion dated 19th September 2023 by the appellants/applicants seeking stay of execution of a judgment and decree delivered on 29th August 2023 by Hon. J.B. Kalo, Chief Magistrate, in Mombasa CMCC No. 2198 of 2018, a suit for trespass and eviction from Plots Mombasa/4800, 4801, 4802 and 4803 Section 111/MN, in which judgment was entered for the respondent as registered owner. The applicants, who claimed to have been on the land since 1989 with over 37 permanent structures and more than 50 traders and families facing imminent eviction, relied on Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, and Article 159 of the Constitution. The respondent opposed, asserting he bought the properties empty, that the applicants were professional squatters with no permanent structures, that no approved market existed on the land, and that he was entitled to possession as of right. The court, per N.A. Matheka J, restated the settled conditions for stay under Order 42 Rule 6 and the arguability and nugatory-ness principles from Court of Appeal authorities including Reliance Bank v Norlake Investments and Chris Munga N. Bichange. Finding the application made without unreasonable delay and that eviction would render the appeal nugatory, the court granted prayer 2, staying execution pending the hearing and determination of the appeal, with costs in the cause.

Key legal issues

#
01

Conditions for grant of stay of execution under Order 42 Rule 6

Holding

The court found the conditions satisfied: application made without unreasonable delay, and refusal would render the appeal nugatory as the appellants would have been evicted.

Reasoning

The court restated the settled principles from Order 42 Rule 6: substantial loss, no unreasonable delay, and security. It also considered the arguability and nugatory-ness limbs from the Court of Appeal authorities. On perusal of the record it found judgment was delivered on 29th August 2023, the appeal was lodged timeously, and eviction before the hearing of the appeal would render its success nugatory, so stay was merited.

p. 4

Legal principles established

#
  • An applicant for stay pending appeal must demonstrate that the application was made without unreasonable delay, that substantial loss may result unless stay is granted, and furnish security; the appeal must be arguable and not rendered nugatory if stay is refused.

Court orders

#
  1. 1.Stay of execution of the judgment and decree delivered on 29th August 2023 pending hearing and determination of the appeal granted (prayer 2 of the application dated 19th September 2023)
  2. 2.Costs to be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 42 Rule 6(1), Order 42 Rule 6(2), Order 51 Rule 1
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange v Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery v Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997, at Page 4
On appeal from
Chief Magistrate's Court, Mombasa
MSA MCCC No. 2198 of 2018
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A of the Civil Procedure Act; Article 159 of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gumba & 6 others v Abdallah (Environment and Land Appeal E027 of 2023) [2024] KEELC 295 (KLR)", Case Analysis (2024). Not stated in the judgment (Appeal from Mombasa CMCC No. 2198 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/295/eng@2024-01-31

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