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ELCAllowedNotice of Motion dated 13th December 2023 (appeal from Kangundo CMC ELC Case No. E030 of 2021)· [2024] KEELC 444 (KLR)

Musyimi & another ((Sued in his own Capacity and also as the Administrator/Personal Representative of the Estate of Muoti Musyimi Ndolo - Deceased)) v Kaumbulu (Environment and Land Appeal E040 of 2023) [2024] KEELC 444 (KLR)

High Court of Kenya
1 February 2024
1,263 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Machakos halted execution of a land judgment because the buyers had already invested over Kshs. 1.2 million on the property pending their appeal.

What this practically means

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Executive summary

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The High Court at Machakos (A. Nyukuri, J) determined a Notice of Motion dated 13th December 2023 in which the appellants, David Musyimi and Patrick Kinyolo Mbithi, sought stay of execution of the judgment and decree of the Kangundo Chief Magistrate's Court in ELC Case No. E030 of 2021, delivered on 27th November 2023, pending the hearing and determination of their appeal. The trial court had allowed the respondent's claim for injunction and declaratory orders over Parcel No. Kangundo/Muisuni/2027. The appellants contended that the 2nd appellant purchased the suit property, took possession on 4th August 2016, and had invested approximately Kshs. 1.2 million in developments including trenches, bananas, drip irrigation and mature coffee bushes, which they stood to lose if execution proceeded. The respondent opposed, arguing the application lacked security for due performance of the decree, that the 1st appellant had admitted selling her the land, and that the appeal lacked merit; she wished to enjoy the fruits of her judgment. The respondent did not appear at the hearing on 18th January 2024 despite service. Applying Order 42 Rule 6 of the Civil Procedure Rules, the court held that the undisputed occupation and investment of the 2nd appellant demonstrated substantial loss. The court declined to order security, reasoning that the disputed land would remain intact regardless of the stay. The court allowed the application and stayed execution of the judgment and decree pending the appeal, with the costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Substantial loss

Holding

The applicants demonstrated substantial loss since the 2nd appellant's occupation and investment of over Kshs. 1.2 million, mature coffee bushes and banana plantation on the suit property were undisputed.

Reasoning

The court held that occupation and development of the suit property by the 2nd appellant was not disputed by the respondent, who only argued the appeal lacked merit and that security had not been provided. Undisputed investment of about Kshs. 1.2 million, together with coffee and banana crops, established a real risk of loss if execution of the injunction and declaratory orders proceeded.

p. 3
02

Security for due performance

Holding

No security was ordered because the suit property is land that will remain regardless of a stay.

Reasoning

The court reasoned that unlike monetary decrees where the decree-holder may be left without recourse, land subject to dispute is not dissipated by the pendency of an appeal. A stay of execution leaves the land intact, so conditioning the stay on security would serve no protective purpose.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss; imminent execution alone is insufficient because execution is a lawful process.
  • Where the subject matter is land which will not be taken away by a stay order, security for due performance of the decree is unnecessary.

Court orders

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  1. 1.Stay of execution of the judgment and decree of Kangundo Chief Magistrate's Court in ELC Case No. E030 of 2021 delivered on 27th November 2023 pending hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
Kangundo Chief Magistrate's Court
ELC Case No. E030 of 2021
Jurisdiction invoked
Appellate jurisdiction of the High Court over subordinate court decisions; Order 42 Rule 6 of the Civil Procedure Rules

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, "Musyimi & another ((Sued in his own Capacity and also as the Administrator/Personal Representative of the Estate of Muoti Musyimi Ndolo - Deceased)) v Kaumbulu (Environment and Land Appeal E040 of 2023) [2024] KEELC 444 (KLR)", Case Analysis (2024). Notice of Motion dated 13th December 2023 (appeal from Kangundo CMC ELC Case No. E030 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/444/eng@2024-02-01

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